2016Na2083847 Wages

Attached Form 1 as shown in the List of Plaintiffs

[Defendant-Appellant] Defendant 1

Attorney Kim Young-soo, Counsel for the defendant-appellant

National Health Insurance Corporation

Government Legal Service Corporation (Law Firm LLC)

Attorney Park Jong-chul et al.

Seoul Central District Court Decision 2016Gahap510131 Decided 11, 2016

March 24, 2017

April 19, 2017

1. The judgment of the court of first instance is modified as follows.

A. The defendant shall pay to the plaintiffs 5% interest per annum on each of the money stated in the "amount of claim in attached Table 2 and the amount of prize in the "amount of prize" as well as each of the money stated in the "amount of prize in the "amount of prize in the judgment of the court of first instance" as to each of the money in the "amount of prize in the attached Table 2 and the "amount of prize in the judgment of the court of first instance" as to October 14, 2016 to November 4, 2016; 15% interest per annum from the next day to the date of full payment; and 5% interest per annum for each money described in the "amount of appeal of the plaintiff" as to each of the money in the "amount of appeal in the judgment of the court of first instance" from October 14 to April 19, 2017

B. The plaintiffs' remaining claims are dismissed.

2. All costs of the lawsuit are borne by the Defendant.

The provisions of paragraphs 3 and 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiffs 15% interest per annum from the next day of the delivery of a copy of the claim of this case and the application for modification of the cause of the claim of this case to the day of full payment.

2. Purport of appeal

A. The plaintiffs

Of the judgment of the court of first instance, the part against the plaintiffs falling under the order to pay is revoked. The defendant shall pay to the plaintiffs each money indicated in the column of "the plaintiff's appeal amount" in attached Form 2 and the prize amount table, and the amount calculated by the rate of 15% per annum from October 14, 2016 to the date of full payment.

B. Defendant

The part against the defendant among the judgment of the first instance is revoked, and the plaintiffs' claims corresponding to the above revocation are dismissed.

1. Facts of recognition;

A. The defendant is a juristic person established under the National Health Insurance Act and conducting health insurance business, etc., and the plaintiffs are employees of Grade III or lower who are employed by the defendant.

B. The Defendant’s wage system consists of basic pay, allowance, and bonus, among the Defendant’s remuneration regulations.

The main contents of bonus portion are as follows (The salary regulations are amended several times from March 2013 to February 2016, but there are no particular amendments to the following contents, and they are not specifically divided.)

[Remuneration Regulations] The definitions of the terms used in the provisions of Article 3 (Definition of Terms) are as follows: 1. The term "repair" refers to the sum of basic salary, allowances and bonuses; 2. The term "basic salary" refers to the amount of basic salary paid according to class, class and class according to the degree of difficulty of duties, degree of responsibility, period of service, etc.; 6. The term "retirement allowance" refers to the amount of additional salary paid according to the conditions of duties, living conditions, etc.; 7. The term " bonuses" refers to the amount paid pursuant to the provisions of Article 23. Article 23 (Reward) ① bonuses shall be paid to employees other than the person subject to the annual salary system other than the person subject to the application of the annual salary system, 15% of the basic salary as of the date of payment of the bonus, respectively. (2) Bonuses shall not be paid to persons less than one month of employment, and any of the following:

2. A person who has been on a leave of absence, suspension from office, removal from position, etc. during the period of bonus payment (referring to the period from the first quarter to the end of each quarter; hereinafter the same shall apply): Provided, That the provisions of the proviso to Article 11 (4) shall apply mutatis mutandis to a person who has been on a leave of absence due to an occupational injury or disease during the period of bonus payment.

C. The Defendant has operated a customized welfare system to allocate welfare points to employees of class 3 or below in order to use welfare points as payment means to purchase certain goods or services online and offline, depending on the employees’ personal needs. The main contents of the Defendant’s guidelines for operating the customized welfare system are as follows (Although the above operating guidelines were revised every year, there is no change in the allocation of the basic welfare points, and it is not specifically divided because there is no change in the allocation of welfare points, in addition to the distribution of the basic welfare points).

[Detailed Welfare Guidelines for the Operation of the System] All employees below Grade III, excluding those on leave of absence prescribed in Article 86 of the Regulations on the Personnel Management of Persons Eligible for Improvement of Welfare Service satisfaction due to the systematic and efficient operation of various welfare items and welfare budget for the improvement of the quality of life, promotion of work efficiency, and promotion of welfare by supporting family-friendly and self-development of ○ employees for the purpose of operating the System.

In order to protect executives and employees from the risk of the occurrence of a disaster or disease of each item of welfare benefits, the following items shall be the basis for the settlement of accounts to be made between January 1 of each year to December 31, 2007 and December 31 of each year, and for the purpose of introducing a system to support the creation of family-friendly or self-development of items that can be autonomously selected and used in accordance with the individual preference among the items of welfare application determined by the operating institution in order to develop individual capabilities and improve the quality of life, such as the health care, self-development, leisure utilization, etc. of individuals: (a) the unit of operating welfare points calculated on a selective basis: (b) the basic basis for the composition of 1,000 won welfare points (including expenses for souvenirs in the day of the employee’s day) (including expenses for gifts in the day of the employee’s day); (c) the allocation of welfare points to the employee’s family members (excluding welfare points in December 12) and the settlement of accounts to the employee’s retirement points by the end of June.

D. Under the provision on overtime allowances and the provision on delegation of attached Table 4 of the Rules on Remuneration for the Defendant

The main contents of the guidelines for the payment of overtime work allowances, which were in force from January 1, 2010, are as follows:

[Regulations on Remuneration] Article 8 (Types of Allowances) of the Regulations on Remuneration shall be classified as follows, and the standards for payment shall be as specified in attached Table 4.8. If it is necessary to pay overtime work allowance on a daily basis, remuneration (payment and calculation method of remuneration) ② If it is necessary to pay daily or hourly salary on August 1, 199, daily wage shall be calculated by dividing the monthly wage by the number of days (in cases of bonuses, the total number of days of payment) of the month, and the hourly wage shall be calculated by 1/209 of the monthly wage: Provided, That the number of consecutive holidays shall be included in attached Table 4) overtime work hours, and the ordinary wage which forms the basis for night work allowance shall be determined separately by the president (the payment guidelines for overtime work allowance). Article 41 (Types of Work Hours and Holidays) of the Regulations on Remuneration at the base of payment. Article 8 (Types of Work Hours and Holidays) of the Regulations on Remuneration at the end of 20 hours a month from the date of implementation of the order of class 3 or less than two hours a week.

4. Operating standards: Basic pay, treatment allowances, special work allowances, long-term service allowances, food expenses, etc.; 10 hours per month for maximum of 10 hours per month on the basis of the number of attendance days per month on the basis of the basic hour of 00 regular work; or 6. Payment of allowances by class of 00 hours and per month; 1.5/209 x overtime work hours x 1.5/209 x ordinary work hours x ordinary work hours x 00 hours which are to be uniformly paid for a prescribed work: Basic pay, treatment allowances, special work allowances, long-term service allowances, food expenses;

E. The Defendant paid bonuses to the Plaintiffs in accordance with the remuneration rules, etc., and allocated 710 points in the year 2013 and 520 points in the year 2014 and 2015, respectively.

F. The Plaintiffs, according to their grades, worked for 17 hours in the third class, 18 hours in the fourth class, 19 hours in the technical field, 18 hours in the technical field, and 18 hours in the technical field. However, the Defendant considered only basic pay, treatment allowances, special work allowances, long-term service allowances, and food expenses as remuneration items of ordinary wages in accordance with the payment guidelines of overtime work allowances as set out in the guidelines for overtime work allowances, and paid them to each of the Plaintiffs, respectively.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Despite the fact that bonuses and basic welfare points prescribed by the Defendant’s remuneration regulations are included in ordinary wages under the Labor Standards Act, the Defendant excluded the payment of overtime allowances to the Plaintiffs in calculating the hourly ordinary wages, which serve as the basis for calculating the hourly ordinary wages. The Defendant is obligated to pay the Plaintiffs the remainder of money excluding the amount actually paid to the Plaintiffs in overtime work allowances, which are calculated based on the aforementioned calculation basis, including bonuses and basic welfare points, as the Defendant is obliged to pay the Plaintiffs the remainder of money, the Plaintiffs seek payment from March 2013 to December 2015.

B. Defendant’s assertion

Since bonuses are not paid to workers less than one month who are employed, there is no rate of work, and there is no fixedness in that there is a need for additional fulfillment of the condition that the bonus should be paid a certain number of working days in addition to the provision of labor in order to pay a part of the bonus.

The basic welfare points are not fixed remuneration for work, but are excluded from the recipients of employment or reinstatement during December, and there is no rate of work. Moreover, since the remaining points that have not been used in the pertinent year are not carried over, and the items of use are limited, there is no fixedness in that the amount of the basic welfare points that the employee could actually use at the time of providing voluntary work cannot be determined.

Ultimately, given that bonuses and basic welfare points cannot be included in ordinary wages, the plaintiffs' claims in this case on the premise that bonus payments and basic welfare points are included in ordinary wages are not reasonable.

3. Determination

A. Standard for determining ordinary wages

Whether a certain wage falls under ordinary wages shall be determined based on the objective nature of the wage, based on whether the wage is paid as money or goods paid to an employee for a contractual work, which is regularly, uniformly, and fixed. It is not determined by the name of the wage or the form of the payment cycle thereof, etc. (see, e.g., Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013). Under the foregoing legal doctrine, it is to examine whether bonuses and basic welfare points are included in ordinary wages under the Labor Standards Act.

(b) Whether bonuses are included in ordinary wages

1) As a condition for the payment of wages to a worker who has been employed for a certain period of continuous service or a different calculation method of wages based on a certain period of continuous service or different amount of wages depending on a different method of calculation for a certain period of continuous service, whether to pay wages or the amount of wages are linked to the period of continuous service can be seen as “specified conditions or criteria related to assessment of the value of the prescribed working hours”. Since the period of continuous service is closely related to a worker’s skill, it can be said that there is one rate in that all workers who have served for a certain period of continuous service are paid wages corresponding thereto. Furthermore, the period of continuous service is not uncertain at the time of providing overtime, night, or holiday work on a voluntary date, but it is recognized as fixed amount of wages that are linked to the period of continuous service regardless of the fulfillment of other additional conditions if a worker who has served for a certain period of continuous service provides his/her voluntary day. Therefore, whether to pay wages or amount of wages are linked to the period of continuous service belongs to ordinary wages (see, e.g., Supreme Court en banc Decision 2008Da.

2) A bonus determined under Article 23 of the Defendant’s Remuneration Regulations shall be paid 15% of the basic salary as of the date of bonus payment for March, June, September, and December each year to workers other than those subject to the annual salary system (Paragraph 1), not to be paid to workers who have been employed for less than one month but less than three months as of the last day of the month of payment of the bonus (Paragraph 2), or workers who have not worked for less than one half of the bonus period, or workers who have worked for less than one half of the bonus period as workers who have worked for less than three months during the period of payment of the bonus, or those who have worked for less than one half of the bonus period and have worked for less than three months (Paragraph 2), and the fact that the defendant’s additional salary is paid in full (Paragraph 3) for those who have worked for more than three months during the period of service and have worked for more than three months and are paid for more than two months during the period of service at least one half of the fixed period of service without the aforementioned circumstances.

Since payment is made on a daily basis, it cannot be deemed that it is linked to the work performance of the relevant worker (in this respect, there is a difference between the case of Supreme Court Decision 94Da19501 Decided February 9, 1996 referred to by the Defendant). In full view of the fact that the bonus prescribed by Article 23 of the Defendant’s Remuneration Regulations is regularly, uniformly, and uniformly paid to workers, it is reasonable to view that the bonus falls under ordinary wage under the Labor Standards Act.

C. Whether the basic welfare points are included in ordinary wages

1) According to the contents of the customized welfare system, the Defendant uniformly allocated basic welfare points to employees of class 3 or below each year in accordance with the contents of the customized welfare system. The Defendant assessed the 1 point as KRW 1,000, so that workers can freely purchase goods and services falling under the autonomous items by using the welfare card, etc. at the online welfare center or the welfare franchise business entity (the welfare points shall be deducted as the payment amount). The basic welfare points shall be allocated from January 1 to December 31 of each year; however, when there is a change in the status such as retirement, the fact that the basic welfare points are settled and allocated monthly.

2) In full view of the following circumstances acknowledged in the above facts, it is reasonable to view that the Defendant’s basic welfare points are included in ordinary wages, taking into account the following circumstances, which are acknowledged by adding the statements in subparagraphs 5 through 7 and the purport

(1) Article 2(1)5 of the Labor Standards Act provides, “The term “wages” means wages, salaries, and any other money or valuables, regardless of their titles, which an employer pays to an employee as remuneration for work.” Therefore, if certain money or valuables have been paid as remuneration for work, it shall be deemed wages, regardless of the name thereof, unless there are special circumstances.” The main text of Article 43(1) of the Labor Standards Act provides, “The wages shall be paid in full directly to an employee in currency.” However, this provision aims to ensure the economic freedom and actual payment of wages by prohibiting the in-kind benefits in principle, thereby guaranteeing the payment of wages to an employee, and accordingly, it cannot be deemed that the said provision does not constitute wages. In particular, the proviso to Article 2(1)

If there is a provision, part of the wages may be deducted or paid in a manner other than currency. However, considering the fact that in relation to welfare points, Article 81 and Article 82(1) of the Framework Act on Labor Welfare may be the basis of the provision, the wage corresponding to welfare points should not be denied solely on the basis that the amount equivalent to welfare points was not paid in currency.

In the Supreme Court en banc Decision 94Da26721 Decided December 21, 1995, the Supreme Court denied the theory of separation of wages under the premise that the wages correspond to both the remuneration for work. In other words, even if it is a nominal living security and welfare money, it cannot be determined that it is not the actual remuneration for the provision of labor. In other words, even if the money and valuables are paid for the welfare benefits of the employer, unless it is clear that it is a mutually advantageous money, and there is no obligation to pay to the employer, or there is no relation to the amount or quality of labor, the remuneration for labor cannot be denied.

③ Although the basic welfare points are limited to the use of welfare points, workers may freely use them within the scope of use, and the Defendant may not interfere with or refuse the settlement of accounts with respect to the use within the scope of use. In other words, in terms of the formation and maintenance of the livelihood of workers, such as the Plaintiffs, the basic welfare points are not different from the actual payment in currency. Ultimately, according to the Defendant’s grant of the basic welfare points, the right to dispose of property benefits corresponding thereto was transferred to workers, and the procedure for the follow-up settlement of welfare points is merely a specific method of use. Moreover, even if the basic welfare points not used are extinguished without carrying over, this is merely a disposition or renunciation according to autonomous decisions. Determination that the occurrence of the obligation to pay money depends on the special and incidental circumstances of individual workers is difficult to accept with considerable difference from

() As seen earlier, the basic welfare points were given to the employees of class 3 or below of the Defendant’s 3 as a lump sum basis each year, and further, the employees are expected to receive certain basic welfare points when providing contractual labor, and thus, fixedness may also be recognized. Therefore, it is reasonable to deem that the basic welfare points constitute ordinary wages as the price for contractual work that is regularly, uniformly, and uniformly paid to the employees. In the meantime, it is reasonable to view that the basic welfare points constituted ordinary wages as the price for contractual work that is regularly, uniformly, and uniformly paid to the employees. Meanwhile, even though the employees employed in December or reinstated in accordance with the Defendant’s operational guidelines did not allocate the basic welfare points for the pertinent year, this is subject to the allocation of basic welfare points that they hold more than a certain period of continuous service in the pertinent year.

D. The result of calculating the unpaid overtime work allowance bonus and the basic welfare points by including them in the ordinary wages and calculating the unpaid overtime work allowance for each plaintiff is as stated in the column of the claim amount in attached Table 2 and the quoted amount in the "amount in the trial" list of the quoted amount (where both the bonus and the basic welfare points are included in the ordinary wages, there is no dispute between the plaintiffs and the defendant as to the unpaid overtime work allowance).

E. Sub-committee

Therefore, as allowances payable to the plaintiffs for overtime work, the defendant is liable to pay each amount written in the column of "amount claimed in the attached Table 2 and the amount of the prize in the judgment of the court of first instance" as well as each amount written in the "amount of the prize in the "amount of the judgment of the court of first instance" as stated in the "amount of the judgment of the court of first instance" as allowances payable to the plaintiffs, which is calculated at the rate of 5% per annum under the Civil Act from October 14, 2016 to November 4, 2016, which is the day following the delivery date of a copy of the application for change of the purport of the claim of this case and the cause of the claim, until November 4, 2016, which is the day of the judgment of the court of first instance, and 15% per annum from the day after the next day to the day of full payment until the day of full payment. As for each amount written in the "amount of the appeal", the defendant is liable to pay 15% per annum from October 14, 2017.

4. Conclusion

Therefore, the plaintiffs' claims are accepted within the above scope of recognition, and the remaining claims are dismissed as they are without merit. Since the judgment of the court of first instance is partially unfair, the judgment of the court of first instance is accepted in part of the plaintiffs' appeal and it is decided to revise the judgment of the court of first instance as above. It is so

Judgment of the presiding judge;

Judge Yang Sung-nam

Judges Lee Jae-hwan

1) Article 81 of the Framework Act on Labor Welfare (Implementation of Selective Welfare Program)

(1) A business owner shall autonomously select workers from among various welfare items according to their own preference and needs.

A system for receiving welfare benefits (hereinafter referred to as "selective welfare system") may be established and implemented.

When a business owner implements a selective welfare program, he/she shall provide equal welfare benefits to all workers in the business.

of the employee's class, number of years of service, dependents, etc.;

The level of benefits may vary according to the applicable provisions.

Article 82 of the Framework Act on Labor Welfare (Design, Operation, etc. of Selective Welfare Program)

(1) When a business owner designs a selective welfare program, he/she shall make basic living reports on workers' death, disability, illness, etc.

The additional selection items for each individual who may support the funeral items, sound leisure, cultural, sports activities, etc. shall be in a balanced manner;

shall endeavor to be able to receive.

A business owner shall manage electronic data to ensure that workers do not have inconvenience in selecting and using welfare benefits under the selective welfare program.

Efforts shall be made to provide services directly or by entrusting them to a third party.

(3) The selective welfare program may be utilized to conduct the intra-company labor welfare fund business.

(4) Specific matters necessary for designing and operating the selective welfare system under paragraphs (1) and (2) shall be generated by Ordinance of the Ministry of Employment and Labor

shall be determined by the Regulations.