(영문) 대법원 2015.5.14.선고 2012다118679 판결

A. The standard for calculating additional wages for overtime, night, and holiday work, pre-announcement allowances for dismissal, and annual leave allowances, and ordinary wages, as the minimum level of average wage, mean money and valuables agreed to be paid for contractual work ordinarily provided by an employee as the contractual work hours, which are regularly, uniformly, and fixed. Whether a certain wage falls under ordinary wages shall be determined according to its objective nature based on whether the wage is regularly, uniformly, and fixed as the money and valuables paid to an employee as the remuneration for contractual work, and not determined by formal standards, such as the name of the wage or the length of the payment cycle thereof. Here, the term “fixed work wage” refers to money and valuables agreed to be paid by an employer and an employee with respect to the work ordinarily provided for contractual work hours.

The fact that a certain wage must be regular in order to belong to ordinary wages means that the wage should be continuously paid at regular intervals.

In addition, in order for a certain wage to belong to ordinary wages, it is uniformly paid.

The term "ununited payment" includes not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards. The term "specified conditions" in this context must be fixed conditions in light of the concept of ordinary wages to calculate fixed and average wages.

Furthermore, in order for a certain wage to belong to ordinary wages, it must be paid fixed. The term "fixed wage" refers to a "the nature, regardless of its achievements, achievements, or other additional conditions, which is confirmed to be paid as a matter of course for the work provided by an employee." The term "fixed wage" refers to the minimum wage that a worker who has worked on an optional day, regardless of the name of the wage, retires from office on the next day in return for the work performed on such day. Therefore, if an employee provided contractual work on a voluntary day, regardless of the fulfillment of additional conditions, it can be deemed that the payment was planned to be made as a matter of course, and whether the payment was made or whether the amount was determined in advance is fixed (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

B. In light of the reasoning of the judgment of the court of first instance, the court below determined that, based on the grounds of the judgment of the court of first instance, the allowance for work on board, which stipulates to pay a certain amount every day according to the area operated by workers, the allowance for continuous service paid 9,000 won per year to workers who have served for more than one year as of July 1, 1987 by adding 9,000 won to each year, and CCTV allowances paid uniformly according to the number of days of work, are all fixed wages that have been paid regularly and uniformly to all workers, and thus, all of them constitute ordinary wages. On the other hand, the court below determined that the allowance paid to all employees, who have joined the driver's mutual aid association and paid for the payment of a certain amount, shall not be included in ordinary wages, since they are

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment below is just and acceptable, and there is no error in the misapprehension of legal principles as to the scope of ordinary wages, incomplete deliberation, and violation of the rules of evidence, as alleged in the grounds of appeal by the plaintiff (appointed party) and the defendant. On the other hand, the court below determined that the "daily allowance" is an allowance with the nature of compensating for actual expenses for the welfare of workers, and it cannot be deemed that it was paid periodically and uniformly, and therefore, it does not

According to the reasoning of the first instance judgment cited by the lower court and the record, the Defendant paid KRW 1,500 per day to all drivers who have provided labor according to the number of days of attendance at work under the name of the welfare expenses stipulated in the wage agreement, and the name of payment can be known to the fact that the Defendant’s work is a lodging room, travel expenses, kitchen room, annual kitchen, drinking room, etc. under the wage agreement. In light of the type of work of the drivers belonging to the Defendant, lodging room, travel expenses may not be deemed to have occurred, regardless of the actual type of work, and this seems to have been paid fixed according to the number of working days to all drivers regardless of whether they actually purchased armors, smokes, or drinking. Therefore, in light of the aforementioned legal principles, the daily allowance paid by the Defendant is determined to be paid according to the number of working days, but it is determined to be paid a certain amount, which is a fixed wage regularly and uniformly paid.

Nevertheless, the lower court determined that daily expenses do not constitute ordinary wages. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of ordinary wages, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

2. As to the grounds of appeal by the Plaintiff (Appointed Party) on overtime work allowances and annual leave allowances, the lower court, based on the reasoning of the first instance judgment, determined that the number of working days during the period from January 1, 2007 to June 30, 2009, which served as the payment standard for full-time overtime work allowances, was agreed on the 26th day of each month, and that the Plaintiff (Appointed Party), Appointed Party B, G, and H’s claim for annual allowance for the year of retirement during which he/she retired without completing his/her work for one year as of July 1 of each year.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal by the plaintiff (appointed party), there were no errors in the misapprehension of legal principles as to the calculation of overtime work allowances and annual leave allowances, incomplete deliberation,

3. As to the Defendant’s ground of appeal on calculation of working hours

A. When calculating an hourly ordinary wage as a monthly wage, the amount shall be calculated by dividing that monthly ordinary wage by the standard number of hours for calculation of the monthly ordinary wage (the average number of hours per year multiplied by the standard number of hours for calculation of the weekly ordinary wage, divided by 12) (Article 6(2)4 of the Enforcement Decree of the Labor Standards Act). However, in cases where an employee receives a monthly wage or a monthly fixed allowance with basic pay as wages for the agreed working hours in excess of the standard working hours prescribed in the Labor Standards Act, a fixed allowance paid in the form of a monthly wage or a monthly ordinary wage shall not be deemed as ordinary wage because the total amount of the fixed allowance paid in the form of a monthly wage includes a paid holiday as prescribed in Article 55 of the Labor Standards Act, which cannot be deemed as ordinary wage, and an extended or night work as prescribed in Article 56 of the same Act does not constitute a total amount of the ordinary wage. In such cases, the calculation of the total working hours by deeming that he/she worked on a paid holiday combined with the agreed working hours (the premium rate per month and night work hours).

The foregoing legal doctrine equally applies to the calculation of hourly ordinary wages for fixed allowances paid in the form of daily pay as wages for agreed working hours exceeding standard working hours prescribed in the Labor Standards Act (see, e.g., Supreme Court Decision 2011Da6106, Jul. 26, 2012).

B. According to the reasoning of the lower judgment and the record, the collective agreement in 2007 determined that “working hours” shall be 8 hours a day, 40 hours a week, 40 hours a week, and may work under the labor-management agreement in consideration of the characteristics of transportation business, and that “working hours and working hours” shall be subject to separate wage agreement, “time hours (from the beginning of the company) to the ending of the business (from the starting of the company) to the closing of the business,” and “long work hours shall be subject to separate wage agreement,” and that “the wage agreement in 2007 and the details of the calculation of wages shall be concrete, and shall be paid 10,609 won for 1 hour and 40 hours a day as overtime allowances and night work allowances in addition to 4,244 won for 2 hours a day without distinguishing work hours from the beginning of the day and the wage agreement in 208 and 209 also set the working hours in the same way as the wage agreement in 209.

is determined by the working hours.

Therefore, allowances paid in the form of monthly salary or daily wage among the various allowances prescribed in the collective agreement and wage agreement are wages for agreed work hours that include overtime work and night work. As such, the hourly ordinary wage for continuous work allowances, etc. paid monthly wage is calculated by dividing the continuous work allowance by the total number of working hours calculated by aggregating the standard working hours per month, the average working hours per month, the monthly overtime hours per month, and the monthly average overtime and night work hours that take into account the respective premium rates, and the hourly ordinary wage for daily wage for overtime work, daily work expenses, CCTV allowances, etc. shall be calculated by dividing it by the number of working hours calculated by aggregating the total working hours per day and the total working hours per night work hours that take into account the respective premium rates in the daily standard working hours.

Unlike this, the lower court erred by misapprehending the legal doctrine regarding the calculation of ordinary wages, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit.

4. As to the Defendant’s grounds of appeal on the calculation method of bonuses and retirement allowances, the lower court acknowledged the facts as indicated in its reasoning, citing the reasons in the judgment of the first instance, and acknowledged the fact as stated in its reasoning, and with respect to bonuses, the Defendant shall pay 7.5% of the total amount of wages paid for three months from the month immediately before the date of payment of bonuses arrives at each due date, and the total amount of wages stipulated in the collective agreement and wage agreement should be the amount including the difference between the amount of each of the instant allowances calculated on the basis of the ordinary wages revised by adding the amount of monthly wages actually received by the Plaintiff (Appointed Party) and the designated parties to the agreement to the agreement and the amount of the difference between the bonus and the amount of the previous bonus paid. In addition, with respect to retirement allowances, the Defendant is obligated to pay the difference between the bonus calculated including

Based on the calculation of the total amount of wages, the amount equivalent to the allowance equivalent to the difference between the basic pay and the ordinary wage and the amount equivalent to the bonus corresponding thereto are not paid, the court below determined that there is a duty to calculate the total amount of wages and the bonus paid based on the revised ordinary wage and to pay the difference with the retirement allowance already paid. Upon examining the reasoning of the court below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the calculation method of bonuses and the amount of retirement payment as alleged in the defendant's grounds of appeal, or in violation of the rules of evidence. However, the court below erred in the calculation of the total amount of wages and the working

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.