(영문) 대법원 2016.2.18.선고 2012다62899 판결

The part of the judgment of the court below against the plaintiffs is reversed, and that part of the case is remanded to the Jeju High Court. The defendant's appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. Ordinary wages under the Labor Standards Act as the basis for the calculation of premium pay for overtime, night, and holiday work, annual allowance, etc. refer to money and valuables agreed to be paid in return for contractual work that an employee ordinarily provides for contractual work hours, which are regularly, uniformly, and fixed.

In cases where wages are paid on a daily basis according to the number of working days by prescribing to pay a certain amount of wages for each working day, the amount of such wages is different depending on the actual number of working days, but if an employee provides a contractual work on a voluntary basis, the amount of such wages is determined to be paid. Such wages constitute fixed wages. Even in cases where the method of calculating a certain number of working days varies, if the method of calculating a certain number of working days or the amount of payment varies, if it is determined that at least a certain amount of wages are to be paid when a contractual work is provided, then the fixed amount is recognized to the extent that the said minimum amount is determined (see, e.g., Supreme Court en banc Decision 2012Da89

B. According to the reasoning of the lower judgment and the record, the wage agreement entered into by the Defendant with the public trade union of Jeju Special Self-Governing Province from 2008 to 2010 and the remuneration guidelines for life contract workers prepared by the Defendant shall be paid to the Plaintiffs a certain amount of meal costs and transport subsidies per month, and where the number of monthly working days is at least 15 days, the monthly fixed amount shall be paid in full, and where the number of monthly working days is less than 15 days, the amount equivalent to 1/15 per day less than 15 days shall be reduced, and where the number of monthly working days is less than 15 days, the Defendant paid the Plaintiffs and other inorganic contract workers differently

Examining these facts in light of the legal principles as seen earlier, it is deemed that the fixedness is recognized to the extent that the wage above a certain amount is determined at least when the provision of contractual labor has been made, although the amount of school meal costs and transportation subsidies paid by the Defendant from 2008 to 2010 is changed on the basis of the monthly working days. Nevertheless, the lower court determined that the aforementioned school meal costs and transportation subsidies do not constitute ordinary wages solely for the reasons stated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on the scope of ordinary wages, thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal pointing this out has merit.

2. The Defendant’s grounds of appeal are determined as to whether or not the wage of a worker is paid for his/her continuous service or whether the wage is paid for his/her continuous service. As such, since the continuous service period is closely related to the employee’s pre-service training, it can be viewed as a “specified condition or standard related to the assessment of the value of the prescribed work.” Moreover, the continuous service period is deemed to have a daily rate in that the wage corresponding to the wage is paid to all workers who have worked for a certain continuous service period. Furthermore, the continuous service period is not uncertain at the time of providing an extended, night, or holiday work on a voluntary date, but at the time of the extension, night, or holiday work. As such, the fixed nature is recognized that a worker who has served for a certain continuous service period can finally receive the wage linked to the continuous service period regardless of the fulfillment of other additional conditions if he/she provides his/her voluntary work on a voluntary date. Therefore, the circumstance that whether the wage is paid or the amount is linked to the continuous service period belongs to ordinary wages (see, e.g., Supreme Court en banc Decision 2012Da9393.

After recognizing the facts as stated in its reasoning based on the adopted evidence, the lower court determined that the long-term continuous service allowance paid on a monthly basis to workers with at least five years of continuous service constitutes ordinary wages.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the scope of ordinary wages, contrary to the defendant's

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench