(a) Criteria to determine whether a person is eligible to work in order to be recognized as wages which serve as the basis for calculating average wages under the Labor Standards Act;

B. Whether the cost of self-driving assistance, regardless of whether or not the actual cost is paid, continuously and regularly, for employees of a certain class or higher, falls under the wage of “01”

A. If an employer’s money and valuables paid to an employee constitute wages that can be included in the total wage, which serves as the basis for calculating the average wage, the money and valuables should first be paid as the object of work, and even if the money and valuables were paid continuously and periodically, if they cannot be deemed as being paid as the object of work, it cannot be deemed as wages. Here, in determining whether certain money and valuables were paid as the object of work, the occurrence of the obligation to pay money and valuables should be deemed directly related to, or closely related to, the provision of work. In addition, in a case where the occurrence of the obligation to pay money and valuables depends on the special and incidental circumstances of an individual employee, such money and valuables cannot be deemed as being paid as the object of work, even if they were paid in accordance with collective agreements, employment rules, employment contracts, etc.

B. If a monetary amount under the pretext of self-driving assistance is paid only to a person who drives a vehicle by holding his/her own vehicle among employees of a certain class or higher, it shall not be paid in lump sum according to the class, but shall depend on the special and incidental circumstances of individual workers, namely, whether an employee of a certain class or higher is driving by holding his/her own vehicle, regardless of whether the payment is directly or closely related to the provision of labor. As such, the portion exceeding the amount that the company uniformly pays to its employees under the pretext of transportation expenses regardless of his/her own vehicle, shall not be deemed to be eligible for work, even if it is paid continuously and regularly, regardless of whether the payment was made or not.

Article 18 of the Labor Standards Act

B. Supreme Court Decision 93Da53719 delivered on March 8, 1994, 94Da37639 delivered on March 28, 1995

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

Korea Film Promotion Corporation Law Firm, Kim & Lee, Attorneys Kim In-som et al., Counsel for the defendant-appellant

Seoul High Court Decision 94Na14393 delivered on October 25, 1994

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant paid 30,000 won per month to its employees from around 1991 to 30,000 won per month for the transportation expenses, and that only the executive officers and drivers holding own vehicles among the executive officers and departments shall pay 300,000 won per month for the executive officers and departments, and the vice-chairperson shall pay 200,000 won per month for the expenses regardless of whether or not the expenses are actually paid as the expenses for self-driving assistance, and held that since the defendant's former employees paid 30,000 won for the expenses for self-driving assistance on a regular basis every month without asking whether or not the expenses have been actually paid for the class and vehicle possession, this cannot be deemed as merely the expenses for self-driving assistance, and since the amount that the plaintiff received continuously and regularly is included in the wages which are the basis for calculating the average wage.

2. However, in cases where an employer’s money and valuables paid to an employee constitute wages that can be included in the total wage as the basis for calculating average wage, such money and valuables should first be paid as the subject of work (subject to work). Thus, even if money and valuables were continuously and regularly paid as the subject of work, if such money and valuables cannot be deemed as being paid as the subject of work, it cannot be deemed as wages. In this context, in determining whether money and valuables were paid as the subject of work, the occurrence of the obligation to pay money and valuables should be deemed as directly related to the provision of work or closely related thereto, and in cases where the occurrence of the obligation to pay money and valuables depends on an individual worker’s special and contingency circumstances, such money and valuables cannot be deemed as being paid as the subject of work even if they were paid according to collective agreements, employment rules, employment contracts

In this case, according to the facts acknowledged by the court below, the money under the pretext of the self-driving subsidy is paid only to the person who drives a vehicle by holding his/her own vehicle, among the employees of a certain class or higher, and thus, the above self-driving subsidy is not paid in lump sum according to the class, but is determined depending on the special and incidental circumstances of individual workers, such as whether an employee of a certain class or higher is driving by holding his/her own vehicle directly or closely related to the provision of labor. As such, among the self-driving subsidy, the part exceeding the amount uniformly paid by the defendant to the employee under the pretext of the transportation subsidy without relation to the possession of his/her own vehicle cannot be deemed as being paid as the object of labor even if it was paid continuously and regularly.

Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on wages that the part of the above-mentioned self-driving expenses paid by the Plaintiff was included in the wages which serve as the basis for calculating the average wage. Therefore, the ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant against the plaintiff is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)