2013Na19241 Wages

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

14.N

15,00

16. P;

[Judgment of the court below]

[Judgment of the court below]

Q Q Co., Ltd.

Law Firm Shin, Attorney Lee Han-hoon, Counsel for the defendant-appellant

Daejeon District Court Decision 2013Da22215 Decided November 1, 2013

April 29, 2014

2014,6.3

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from May 1, 2013 to the day of full payment with respect to each of the amounts stated in the separate sheet No. 1 attached hereto and each of them.

2. Purport of appeal

A. The remaining plaintiffs except Plaintiff N shall be revoked the judgment of the first instance. The defendant shall pay to the remaining plaintiffs, other than Plaintiff N, an amount calculated by applying a rate of 20% per annum to each of the amounts indicated in the attached Table 2’s “The Amount of Unpaid Wage” as well as each of the amounts thereof from May 1, 2013 to the date of complete payment. B. The part against Plaintiff N in the judgment of the first instance is revoked. The defendant shall pay to Plaintiff N the amount of KRW 1,485,283 and the amount calculated by applying a rate of 20% per annum from May 1, 2013 to the date of complete payment.

1. Basic facts

A. The defendant is a corporation that runs transportation business, and the plaintiffs are employees belonging to the defendant.

B. On June 30, 201, the Korea Trade Union concluded a wage agreement between the S Union representing the Defendant and the S Union during the period of application from February 1, 2011 to January 31, 2012. On September 6, 2012, the said wage agreement was renewed and the application period was extended by January 31, 2013 (hereinafter “instant wage agreement”). The main contents of the instant wage agreement are as follows.

Article 1 (Retirement System)

2.It shall be calculated on the basis of the level of actual work performed by each worker, but the hours of work shall be uniformly determined on the basis of the special circumstances of the transport service as follows:

(i) 2 intersections per day;

(a) Basic working hours: 8 hours a day;

(b) Extension hours: one hour a day and nine hours a day after the full attendance.

(ii) Article 2 (Types of Work and Hours of Work)

1. The form of work shall, in principle, be a two-way system per day and full-time work shall be conducted concurrently, but only those who wish to obtain an agreement of the worker in the workplace shall be conducted full-time work;

2. The basic working hours shall be forty hours a week;

3. Holidays may be changed depending on the special conditions of urban buses for the public interest;

4. The number of monthly working days shall be 22 full-time days (20 days in February);

An employer shall, when a worker requests two (22 days or more but 2 days) overtime work, assign him/her to work for at least 24 days (22 days in case of February).

If an employer does not provide a worker with two-day overtime work due to a cause attributable to the employer, the company shall pay 24-day wages in the wage agreement including the overtime work day.

6. A payment shall be made in accordance with the wage calculation table when the service exceeds 22 days a month.

Article 6 (Extended, Night and Holiday Work Allowance)

1. For allowances, 50/100 shall be additionally paid by applying ordinary wages under Article 5 of the wage agreement, and where workers at midnight continue to work full-time to work until P.M., the number of working days shall be calculated as two days, and where the number of working days per month exceeds 22 days, it shall be paid in accordance with the wage calculation table;

Article 7 (Allowance for Leave) A weekly holiday allowance shall be governed by the provisions of Article 54 of the Labor Standards Act and Article 5 of the Agreement (ordinary wage), but a paid holiday shall be paid in accordance with the following guidelines to a person with perfect attendance of contractual working days per week:

The ordinary wage for one day, the 10-day ordinary wage for the worker, the 10-day ordinary wage for the worker, the 15-day ordinary wage for the worker, the 20-day ordinary wage for the worker who works for the 20-day ordinary wage, and the 4-day ordinary wage for the worker who works for the 5-day regular holiday allowance for the worker who works for the 5-day regular holiday allowance shall be paid to the worker who works for the 5-day regular holiday allowance, but it shall not exceed the 52-day weekly

Article 9 (Lump-Sum 1) Company has paid holiday allowances to an employee on the Workers’ Day (St. May 1), T. B. The Defendant paid holiday allowances to the Plaintiffs separately from weekly holiday allowances under Article 7 of the Wage Agreement in accordance with the said wage calculation schedule. In the month except two months, the Defendant paid holiday allowances in addition to 26 days to a person whose number of working days is at least 27 days, and 50% of the daily pay in excess of 24 days to a person whose number of working days is at least 25 days in February.

D. The Plaintiffs and the Defendant set one day per week as a weekly holiday, and the Plaintiffs did not work on the said weekly holiday.

[Reasons for Recognition] Facts without a partial dispute, entry in Gap evidence 1, 2, and 3 (including each number in the case of additional number), the purport of the whole pleadings

2. The plaintiffs' assertion

A. The basic working hours are 40 hours per week, 22 days per month (20 days in February), and the basic working hours are 176 hours per month (=8 hours X22, and 160 hours in February = 160 hours = 8 hours and 8 hours X20 days) constitute overtime and holiday work.

B. However, the Defendant’s wage calculation table was failed to properly reflect holiday work allowances that the Defendant is obligated to pay under the Labor Standards Act, and on September 6, 2012, the wage calculation table was concluded between labor and management without preparing the above wage calculation table at the time of renewal of the wage agreement. Therefore, the above wage calculation table cannot be included in the contents of the wage agreement, and it is not effective for the Plaintiffs. The Defendant shall pay holiday work allowances to the Plaintiffs in accordance with the instant wage agreement or the mandatory provisions of the Labor Standards Act. Nevertheless, the Defendant did not pay holiday work allowances to the Plaintiffs for the number of working days exceeding 22 days from February 1, 2012 to January 31, 2013 (20 days). The Defendant is obligated to pay holiday work allowances to the Plaintiffs. Accordingly, the Defendant is obligated to pay each amount written in the attached Table 2 “Unpaid wage” column, the amount corresponding to holiday work allowances.

3. Judgment on the plaintiffs' claim for holiday work allowance

A. First, we examine whether the Defendant’s wage calculation table becomes effective as part of the wage agreement between the Plaintiffs and the Defendant.

In light of the purport of the evidence No. 1 and the purport of the entire argument, the fact that the wage calculation table is attached to the wage agreement signed on September 6, 2012 at the time the wage agreement is renewed on September 6, 2012 between the RU and the Defendant, and the fact that there is a party’s seal on the said wage calculation table. According to the above facts, it is reasonable to deem that the above wage calculation table was a part of the wage agreement by mutual agreement between the parties. Thus, the above wage calculation table was not prepared at the time of renewal of the wage agreement, and the above wage calculation table is not effective against the Plaintiffs.

B. Next, we examine whether the work days after the full attendance falls under holidays for which holiday allowances shall be paid.

On the other hand, Article 55 of the Labor Standards Act provides that an employer shall grant an employee a paid holiday at least once a week average, and Article 56 of the same Act provides that an employer shall pay a holiday allowance in addition to not less than 50/100 of ordinary wages for the holiday work. However, Article 56 of the Labor Standards Act refers to a holiday prescribed in Article 55 of the Labor Standards Act, and a statutory holiday prescribed as a holiday pursuant to a collective agreement or employment rules (see, e.g., Supreme Court Decision 90Da14089, May 14, 1991). It does not constitute a holiday for which an employer shall pay holiday allowance.

However, the facts that the plaintiffs and the defendant set the first day of a week as weekly holiday and did not work on the weekly holiday are as seen earlier, and even according to the plaintiffs' assertion, the plaintiffs seek payment of holiday work allowance for the working day except for the above weekly holiday. In light of the above legal principles, the plaintiffs cannot be said to have a duty of the defendant to pay holiday work allowance to the plaintiffs for their work day except for weekly holiday work, just because the plaintiffs do not work on the day specified by the collective agreement or rules of employment, since they do not work on the paid holiday pursuant to the rules of employment. Furthermore, in the month except for the second month, at least 27 days in the month, and at least 25 days in February, and at least 25 days in the month, the defendant's wage calculation table of the defendant to pay holiday work allowance for the number of working days exceeding 24 days violates Article 56 of the Labor Standards

Unless there are special circumstances between labor and management, the remaining one day (for example, from the day of every week to the day of every week, on the day of every week, on the day of every week) on which a worker does not work for a week other than a week under the weekly 40-hour work system constitutes an unpaid holiday, barring special circumstances between labor and management. This is the day when a worker does not work naturally under the reduction of working hours, which is the day when a worker has worked for 40 hours a week, the overtime allowance is to be paid, regardless of the fact that a worker has to work for 40 hours a week on other day, and it is not a working day when a worker has to pay a holiday allowance.

In light of the above legal principles, as long as the plaintiffs did not work on a weekly holiday, 4 days in the case of the day excluding two months, 4 days in the case of the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day 27 days, and 25 days in the case of February excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day

D. Therefore, the plaintiffs' claim for holiday work allowance cannot be accepted.

4. Determination on Plaintiff N’s claim for overtime allowance

This court's explanation on the plaintiff N's claim for overtime allowance is the same as the corresponding part of the judgment of the court of first instance, and thus, it is citing it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

Therefore, Plaintiff N’s claim for overtime allowance is reasonable.

5. Conclusion

Therefore, the judgment of the first instance court is just in conclusion, and the plaintiffs' appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and assistant judge

Judges Kim Gin-han

Judges Cho Jong-soo