2013dan206541 Wages

Park 00 (64 - 1)

Seo-gu Incheon

Attorney Kim-hoon, Counsel for the defendant

00 Transport Corporation

Incheon Jung-gu

Representative Director Kim00

Attorney Park Jong-chul, Counsel for the plaintiff-appellant

March 13, 2014

April 24, 2014

1. The plaintiff (designated party)'s claim is dismissed.

2. The costs of the lawsuit shall be borne by the plaintiff (the appointed party).

The defendant shall pay each of the above amounts with 20% interest per annum from the day after the day of service of the copy of the complaint of this case to the day of complete payment with respect to each of the above amounts and each of the above amounts as stated in the "one List" to the designated parties listed in the plaintiff (designated parties, hereinafter referred to as "the plaintiff") and the attached list 1.

1. Basic facts

A. Status of the Parties

The defendant is a company operating passenger transportation services, etc., and the plaintiff and the designated parties (hereinafter referred to as "the plaintiff et al.") are those who are employed by the defendant and work as bus crew.

(b) Details of collective agreements and wage agreements;

Wages paid to workers belonging to the defendant are determined by collective agreements and wage agreements concluded between the defendant and the defendant's trade union.

1) Major contents of the collective agreement and wage agreement in 2012, effective April 1, 2012

A) Work hours and working system

In principle, the contractual working days shall be 24 full-time days, and the working system shall be 20 hours per day, 40 hours per week, and 40 hours per week, and the standard working hours shall be replaced by overtime work according to the unique characteristics of transport service.

However, it may be recognized as a full-time worker for at least 20 days due to working conditions, and where the worker has no full-time worker, the basic wage, night allowances, and overtime allowances shall not be paid.

B) Wage system (basic pay and allowances)

The salary shall be calculated and paid in basic pay and various allowances, and shall be paid in direct currency on the 15th of the following month after finishing one-month work from the first to the last day and calculating the amount of wages during the period.

i) Si level: 5,684 won

ii) Basic pay: 1,00, 384 won (176 hours)

ii) 24 full-time, 24 full-time, including bonuses and all various allowances, provided that the full-time, however, does not pay bonuses and allowances;

(1) Regular workers 2, 824, 546 won

(2) Non-regular workers: 1, 985, 402 won

2) The standard wage details on August 8, 2012 (regular workers, 24 full-time workers, 24 days);

A person shall be appointed.

(c) Paying wages, etc.;

The Defendant paid bonuses and special allowances to its employees, including the Plaintiff, in accordance with the above collective agreement and wage agreements, on the date of payment of wages. It did not include the ordinary wages, but rather calculated and paid extended work allowances, night work allowances, holiday work allowances, weekly holiday work allowances, and annual allowance.

[Ground of recognition] Facts without dispute, Eul 1, Eul 2, 3 evidence, the purport of the whole pleadings

2. Parties’ assertion

A. The plaintiff's assertion

In calculating the instant statutory allowance, the Defendant calculated the hourly ordinary wage at a time determined in a wage negotiation (hereinafter referred to as “base pay”). However, in addition to the basic hourly wage, the Defendant’s calculation of the hourly ordinary wage was made periodically, uniformly, and fixed to employees, and thus, it constitutes ordinary wage. Therefore, the Defendant is obliged to pay the Plaintiff, etc. the amount calculated by deducting the statutory wage of this case, which was already received by the Plaintiff, from April 1, 2010 to March 31, 2013, on the basis of the hourly ordinary wage, including bonuses and special allowances. Therefore, the Defendant is obliged to pay the Plaintiff, etc. the amount calculated by subtracting the statutory wage of this case, including the bonus, etc., from the total amount (attached sheet).

B. The defendant's assertion

The defendant did not pay bonuses and special allowances to workers (at least 24 days per month) who did not work in full (at least 24 days per month). Since bonuses and special allowances may not be deemed fixed wages, they do not constitute ordinary wages.

3. Determination:

A. Determination criteria for ordinary wages

Whether a certain wage falls under ordinary wages shall be determined based on objective nature on the basis of whether the wage is paid periodically, uniformly, or fixed as money or goods to be paid to a worker as remuneration for a contractual work. The term "fixedness" refers to "the nature of payment, regardless of achievements, achievements, or other additional conditions, which has been determined to be paid as a matter of course for the work provided by the worker," regardless of the name of the wage, as it can be defined as "minimum wage to be paid as remuneration for the daily work even if a worker who has worked for a fixed period of time retires on the next day, regardless of the name of the wage, regardless of whether the wage was paid periodically, uniformly, or fixed. It can not be determined differently by the Supreme Court en banc Decision 200Da18299 Decided decided that the amount of payment for additional work would be paid if the worker provided on the day voluntarily, regardless of whether the additional contractual work was fulfilled, and thus, it can not be determined otherwise.

(b) Whether bonuses and special allowances fall under ordinary wages;

1) Comprehensively taking into account the evidence mentioned above and the purport of the entire arguments in Eul evidence Nos. 4 and 5 (including each number of branches), the following facts are acknowledged: ① The defendant’s collective agreement and wage agreement provides that a bonus shall be paid to workers who work for at least 24 days during the pertinent month (43, 872, 500, 192, 51, and 512, from August to October 2012, 201, and 519, 90, 904, and special allowances shall be paid to workers who worked for at least 24 days from April 201 to July 201; ② the defendant provided that a special allowance shall be paid to workers who worked for at least 24 days from April 3, 2010.

In light of the above legal principles as seen earlier, the Defendant’s bonus or special allowance is not expected to be paid as a matter of course, regardless of the fulfillment of additional conditions, but is not paid as a matter of course at least 24 days per month, and it cannot be deemed that it does not meet the fixedness of working.

2) As to this, the Plaintiff et al. asserted that the bonus and special allowances in this case were paid to all workers on a monthly fixed basis, and it is difficult for the Plaintiff et al. to take part in working hours, and thus, they cannot be deemed as additional conditions, such as work performance, since they cannot be seen as working hours, and therefore, they merely set up for penal provisions as to the non-performance of working days. However, as seen earlier, it is difficult to regard them as a mere formal condition since the Defendant did not actually pay bonuses or special allowances to workers who did not achieve working conditions for at least 24 days a month, and there is no evidence that the payment conditions such as the above bonus are penal conditions. Thus, the Plaintiff et al.'s assertion is without merit.

3) Therefore, the Plaintiff et al.’s assertion that bonuses and special allowances constitute ordinary wages is without merit, without any need for further review.

4. Conclusion

Therefore, all of the claims of this case by the plaintiff et al. are dismissed as it is without merit. It is so decided as per Disposition.

Judges Maximum number of judges