Where there is an agreement to exclude food expenses, physical training expenses, etc. from the calculation of average wages, whether such an agreement should be excluded from the basic wages of the calculation of retirement allowances.

Even in cases where the calculation of the basic wage for the calculation of the amount of the retirement allowance under the provisions of the Labor Standards Act, if there was a separate agreement between the labor and management to exclude the food, fuel, and physical training expenses from the calculation of the amount of the average wage, and such agreement is not null and void as it violates the Labor Standards Act, it shall be excluded from the basic wage for the calculation of the amount of the

Articles 19, 20, and 28 of the Labor Standards Act

Supreme Court Decision 90Da6170 delivered on January 15, 1991, 92Da20316 delivered on May 27, 1993

Plaintiff 1 et al., Counsel for the plaintiff 1 and 3 others-appellant

Plaintiff 5

Attorney Jeong Sung-sung et al., Counsel for the defendant-appellant

Seoul High Court Decision 93Na36846 delivered on April 20, 1994

The part of the lower judgment against the Defendant is reversed and that part of the case is remanded to the Seoul High Court.

All appeals by Plaintiffs 1, 2, 3, and 4 are dismissed.

The costs of appeal regarding the dismissed appeal shall be assessed against the above plaintiffs.

(1) We examine the grounds of appeal by Plaintiffs 1, 2, 3, and 4.

The court below acknowledged the facts as stated in its decision after compiling evidence and recognized the facts in light of the relevant Acts and subordinate statutes, it judged that the old retirement allowance provision shall apply to the employees of Defendant Corporation for the continuous service period until March 31, 1981, which is before the enforcement of Article 28(2) of the Labor Standards Act, and that the new retirement allowance provision shall apply to the continuous service period after April 1, 1981. In light of the records, the above recognition and decision of the court below is just and it is not erroneous in the misapprehension of legal principles, such as the theory of lawsuit. The judgment of party members pointing out the lawsuit is not appropriate to be invoked in this case. The argument is without merit.

In light of the records, the judgment of the court below that the old retirement allowance provision on high level shall apply to the continuous service period from the date of entry to December 31, 1980 is just in calculating the retirement allowance for plaintiff 4 whose rank was changed from high level to the class of employee on March 1, 1981, and there is no error in the misapprehension of legal principles as to the theory of lawsuit. We do not agree with the reasoning.

(2) We examine the Defendant’s grounds of appeal.

The court below acknowledged the facts as stated in its reasoning by taking full account of the evidences and found the facts. The court below determined that since the food support expenses, fuel support expenses, and physical training expenses in this case paid by the defendant Corporation are included in the average wage category under the Labor Standards Act, the provisions concerning employees in the new retirement allowance rules, which are the criteria for calculating the retirement allowance, are invalid, the provisions concerning new retirement allowance rules shall apply to employees. On the other hand, inasmuch as the new retirement allowance rules, which are the criteria for calculating the retirement allowance paid by the defendant Corporation, are invalid, the provisions concerning employees in the new retirement allowance rules shall be applied to employees; on the other hand, inasmuch as the provisions concerning the basic wages in the new retirement allowance rules concerning the new retirement allowance rules are inconsistent with those concerning employees and the retirement allowance that are paid by the employees in accordance with the retirement allowance system, since the provisions concerning the basic wages in the calculation of the retirement allowance applicable to the continuous service period after April 1, 1981, were not applicable to the employees, the basic wages in this case shall be included in the calculation of the average wages under the Labor Standards Act (the retirement allowance in this case.).

In light of the records, the food subsidy in this case, fuel subsidy, and physical training expenses belong to the scope of wages subject to average wage calculation. Meanwhile, the old retirement allowance provision applies to the employees of the defendant corporation until March 31, 1981, prior to the enforcement of Article 28(2) of the Labor Standards Act. The new retirement allowance provision applies to the continuous service period after April 1, 1981. Since the new retirement allowance provision cannot be applied as it is to the employees for reasons as stated in its reasoning, there is no provision concerning the basic wage for the calculation of the retirement allowance applicable to the continuous service period after April 1, 1981. Thus, the court below's determination that the basic wage for that period is bound to be calculated in accordance with the average wage under the Labor Standards Act is acceptable, but in such a case, the basic wage is excluded from the food subsidy in this case between the labor and management, the fuel subsidy in this case, and the average wage in this case, and it is not in violation of the Labor Standards Act.

Nevertheless, without examining whether there exists a separate agreement between the labor and management to exclude food substitute allowance, fuel subsidy, and physical fitness allowance from the calculation of average wage, and whether such agreement violates the Labor Standards Act and becomes null and void, the court below's determination that the basic wage for the calculation of retirement allowance applicable to continuous service period after April 1, 1981 is inevitable to calculate the basic wage in accordance with the average wage provision under the Labor Standards Act for that period because there is no provision regarding the basic wage for the calculation of the average wage. Thus, the determination that the food substitute allowance, fuel subsidy, and physical fitness allowance is included in the basic wage for the calculation of the retirement allowance in this case is erroneous in the misapprehension of the legal principles on the calculation of the light retirement allowance in this case, which affected the conclusion of the judgment. The reasoning points out this issue is with merit. The judgment of the party member who is invoked as the basis for its determination is different from this case and it is inappropriate to invoke this case.

(3) Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All appeals by Plaintiffs 1, 2, 3, and 4 are dismissed, and the costs of appeal regarding the dismissed portion are assessed against the said Plaintiffs, who are the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)