[1] The meaning of ordinary wages

[2] In a case where the issue was whether the additional continuous service charges, the amount of salaries, traffic subsidies, sanitation allowances, risk allowances, weather allowances, weather allowances, overtime allowances, physical training expenses, and holiday leave expenses, which a local government has paid to street cleaners, are included in ordinary wages, the case affirming the judgment below that all of the above money and valuables are included in ordinary wages

[3] Whether workers can return wages already paid to workers under a collective agreement without individual consent or authorization (negative)

[4] Whether an employer may offset a worker's wage claim or retirement allowance claim by using the right to claim the return of wages paid in excess of the employer's calculation error, etc. as an automatic claim (affirmative in principle)

[5] The case affirming the judgment below holding that set-off is allowed in a case where a retired street cleaners sought payment of unpaid allowances, etc. during his/her service, and the local government claimed a set-off against the unpaid holiday work allowance claim based on the claims for refund of overtime work allowances paid by mistake in the guidelines of the Ministry of Government Administration and Home Affairs due to the erroneous payment of overtime work allowances, etc

[6] The meaning of the average wage under the Labor Standards Act and the method of determining whether the “average wage”, which serves as the basis for the calculation of retirement allowances under the rules of employment or collective agreement of a certain workplace

[7] In a case where the issue was whether the "average wage" as the basis of calculation of retirement allowances under the collective agreement refers to the average wage under the Labor Standards Act or the Guarantee of Workers' Retirement Benefits Act, the case affirming the judgment below which held that the "average wage" under the collective agreement refers not to the average wage under the Labor Standards Act or the Guarantee of Workers' Retirement Benefits Act, but to the amount calculated by dividing the total amount of wages composed of the ordinary wage

[1] Article 2(2) of the Labor Standards Act, Article 6 of the Enforcement Decree of the Labor Standards Act / [2] Article 2(2) of the Labor Standards Act, Article 6 of the Enforcement Decree of the Labor Standards Act / [3] Article 43(1) of the Labor Standards Act, Articles 492 and 741 of the Civil Act / [5] Article 43(1) of the Labor Standards Act, Articles 492 and 741 of the Civil Act / [6] Articles 2(1)6 and 34 of the Labor Standards Act, Articles 2(4) and 8 of the Guarantee of Workers' Retirement Benefits Act / [7] Articles 2(1)6 and 34 of the Labor Standards Act, Articles 2 subparag. 4 and 8 of the Guarantee of Workers' Retirement Benefits Act

[1] [3] Supreme Court Decision 2009Da74144 Decided January 28, 2010 / [1] Supreme Court Decision 2006Da13070 Decided June 15, 2007 / [3] Supreme Court Decision 9Da67536 Decided September 29, 200 (Gong200Ha, 2195), Supreme Court Decision 2009Da76317 Decided January 28, 2010 (Gong2010Sang, 418) / [4] Supreme Court Decision 88Da26413 Decided May 8, 190 (Gong190, 1240) / [3] Supreme Court en banc Decision 93Da385294 Decided December 28, 20193; Supreme Court Decision 2009Da385979 decided May 29, 2019.

Plaintiff 1 and nine others (Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Sung-nam City (Law Firm Fence, Attorneys Cho Young-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na57321 decided January 21, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

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

1. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

(1) If a fixed amount of money or valuables paid to an employee as a worker eligible for a fixed amount of work or total amount of work is regularly and uniformly paid, it falls under ordinary wages, but it does not constitute ordinary wages. The amount of money or valuables paid periodically and uniformly, or the amount of payment varies depending on actual work performance. Here, the amount of money or valuables paid uniformly includes not only the amount paid to all workers, but also the amount paid to all workers who meet a certain condition or standard. The term “fixed condition” in this context includes not only the amount paid to “all workers” but also the amount paid to “all workers who meet a certain condition or standard.” In light of the concept of ordinary wages to calculate “fixed and average wage” (see, e.g., Supreme Court Decisions 2006Da13070, Jun. 15, 2007; 2009Da74144, Jan. 28, 2010).

(2) According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and determined that the amount of continuous service additional charges for each year of continuous service and all street cleaners paid a fixed amount of monthly wage (the amount paid in 2006), traffic subsidies, sanitation allowances, risk allowances and all street cleaners, which are regularly and fixed according to certain standards, are all fixed wages which are paid periodically and uniformly in return for work.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error by misapprehending the legal principles on ordinary wages.

Supreme Court Decision 2006Da81974 Decided April 12, 2007 may not be invoked as it differs from this case.

B. Regarding ground of appeal No. 2

Specifically, wages or retirement allowances for which the right to claim the payment has already been transferred to the worker’s private property area and are entrusted to the worker’s disposition. Thus, insofar as the labor union does not obtain an individual consent or authorization from the worker, it cannot perform the act of disposition such as waiver or postponement of payment. Thus, the employer’s return of wages already paid to the worker under a collective agreement has no effect unless there is an individual consent or authorization from the worker (see, e.g., Supreme Court Decisions 9Da67536, Sep. 29, 200; 2009Da76317, Jan. 28, 2010).

In the same purport, the decision of the court below that the defendant applied the collective agreement in 2008, which was concluded with the Sung-nam Viewing Trade Union whose members are the plaintiffs retroactively, and arranged that the extension of work hours for January or November 2008 and the holiday work allowances for the plaintiffs already paid to the plaintiffs does not occur in whole or in part, is just and there is no error in the misapprehension of legal principles as to the validity of the collective agreement, as long as they did not obtain individual consent or authorization from workers.

2. Regarding the plaintiffs' grounds of appeal

A. As to the grounds of appeal Nos. 1 through 3

(1) According to the main sentence of Article 43(1) of the Labor Standards Act, wages shall be paid in full to an employee in currency, and it is in principle that an employer does not offset his/her employee’s wage claims with his/her claim against the employee. This is intended to protect the employee in economic and social subordinate relationship. This also applies to the case where the employee’s retirement allowances are paid in excess of his/her wage due to an error in calculation, etc. (see, e.g., Supreme Court Decision 88Meu26413, May 8, 190). However, in a case where the employee’s retirement allowances are paid in excess of his/her wage due to an error in calculation, he/she requests the employee’s unpaid wage or retirement allowances after his/her retirement, or even if the employee’s claim for wages during his/her employment, the excess period paid and the time when exercising his/her right of offset does not lose the substance of adjustment and further, if the employer’s pre-announcement of the amount and method of offset, etc., the employee may offset the employee’s wage claims or retirement allowances with automatic claims paid (see Supreme Court en banc Decision 297.

(2) According to the reasoning of the lower judgment, the lower court determined that the Defendant could offset the right to request the payment of a holiday work allowance against the unpaid claim for the payment of a holiday work allowance by misunderstanding the above guidelines of the Ministry of Government Administration and Home Affairs, i.e., the payment of a holiday work allowance and the guidelines of the Ministry of Government Administration and Home Affairs, although there is no agreement between the Plaintiffs, the Seongbuk-nam Labor Union and the Defendant on the recognition of the hours of a holiday work as eight hours a day, or there is no agreement on the payment of eight hours a day of a holiday work allowance, or even though there is no agreement on the payment of eight hours a day of a holiday work allowance, the Defendant paid a holiday work allowance by erroneously interpreting the collective agreement on the payment of a holiday work allowance and the guidelines of the Ministry of Government Administration and Home Affairs.

In light of the above legal principles and records, the above determination by the court below is just, and it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal principles on prohibition of set-off

B. Regarding ground of appeal No. 4

According to the reasoning of the judgment below, the court below determined that the collective agreement in this case is valid even if the collective agreement in this case took the concept of the Labor Standards Act or other ordinary wages as the basis of the calculation of the above agreed allowances under the concept of the Labor Standards Act and the scope of ordinary wages under Article 56 of the Labor Standards Act and Article 20 of the collective agreement in 2005 and 207 (hereinafter “the collective agreement in this case”), since the above agreed allowances are not legal allowances under Article 56 of the Labor Standards Act, which provide that overtime allowances shall be paid in addition to 50/100 or more of ordinary wages for overtime work.

In light of the aforementioned legal principles and the records, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine on overtime allowances

C. As to grounds of appeal Nos. 5 and 6

(1) Whether an average wage, which serves as the basis for the calculation of a retirement allowance under the rules of employment or collective agreement at a certain workplace, constitutes an average wage under the Labor Standards Act, or to which extent the wage is included, is determined by the objective interpretation of the above rules or agreement, and the interpretation of the rules or agreement ought to take into consideration, comprehensively taking into account various circumstances such as the payment practices at the workplace in question, the amendment of the above rules or agreement, and the details thereof (see, e.g., Supreme Court Decisions 97Da25095, Mar. 13, 1998; 2003Da27429, Mar. 11, 2005).

(2) According to the reasoning of the lower judgment, the lower court determined that “average wages” based on the calculation of retirement benefits under the instant collective agreement is not the average wage of the Labor Standards Act and the Guarantee of Workers’ Retirement Benefits Act, but the amount calculated by dividing the total amount of wages consisting solely of the ordinary wages agreed under the instant collective agreement and various allowances calculated based thereon by the total number of days during the calculation period,” and determined that the instant collective agreement is clear in that the amount of retirement benefits calculated by multiplying the average wage under the said agreement by the payment rate of 150/100 is more than the amount of retirement benefits calculated by multiplying the average wage under the instant collective agreement by the payment rate of the Guarantee of Workers’ Retirement Benefits Act, and that the instant provision of retirement benefits is valid, and that the Defendant has already paid retirement benefits calculated under the instant collective agreement to the Plaintiffs, and thus the Defendant is

In light of the above legal principles and records, the above determination by the court below is just, and it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on collective agreements and retirement allowances

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)