Even if some of the wages that can be included in average wages are excluded from the basic wages for calculation of retirement allowances under the provisions on retirement benefits, if the amount of retirement calculated accordingly exceeds the lowest limit guaranteed by the Labor Standards Act, whether the provisions on retirement benefits are valid.

Article 28(1) of the Labor Standards Act provides the lowest limit of the amount of retirement to be paid to the retired employee. Thus, even if the money and valuables paid to the employee are included in the average wage under the Labor Standards Act, if the employer excludes such wages from the basic wage which serves as the basis for calculating the average wage under the retirement benefit provision, etc., if the amount of retirement calculated under the provision exceeds the lowest limit guaranteed by the Labor Standards Act, it cannot be said

Article 28 of the Labor Standards Act

Supreme Court Decision 90Da6170 delivered on January 15, 1991 (Gong1991, 735 delivered on December 13, 1991) 91Da32657 delivered on December 13, 1991 (Gong192, 510)

[Defendant-Appellee] Plaintiff 1 and 8 others, Counsel for defendant-appellee

Attorney Lee Sung-ho et al., Counsel for the defendant-appellant

Seoul High Court Decision 93Na25051 delivered on December 23, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the first, second, and third points

The decision of the court below on the ground that the wage rules revised on January 1, 1981 by the defendant company had been changed disadvantageously to the contents of the existing working conditions, and the wage rules, which are the basis provisions for the payment of retirement allowances for employees of the defendant company, are part of the rules of employment, should be obtained in the case of the defendant's disadvantageous revision, and the defendant's consent should be obtained in accordance with the collective decision-making method of the employees covered by the above provision, and the decision of the court below on the ground that the defendant's implied consent was obtained from the employees of the company or the plaintiffs' claim in this case was violated in the principle of good faith and the change of the above wage rules was made socially reasonable, is just, and there were no errors in the misapprehension of facts due to insufficient deliberation, the misapprehension of legal principles, and the interpretation of Article 95 of the Labor Standards Act.

2. On the fourth ground for appeal

Article 28(1) of the Labor Standards Act provides for the lower limit of the amount of retirement to be paid to a retired employee. Thus, even if the money or valuables paid to an employee may be included in the average wage under the Labor Standards Act, if the employer excludes such wages from the basic wage that serves as the basis for calculating the average wage under the retirement benefit provision, such provision cannot be deemed null and void (see, e.g., Supreme Court Decision 80Da1340, Nov. 23, 1982; Supreme Court Decision 90Da23868, Nov. 27, 1990; Supreme Court Decision 90Da6170, Nov. 15, 1991; 91Da32657, Dec. 13, 1991).

However, according to the reasoning of the lower judgment, the lower court rejected the Defendant’s assertion that the foregoing food subsidy should be excluded from the wages, which are the basis for the calculation of retirement allowances, on the ground that the food subsidy in its holding ought to be considered as remuneration for work continuously and uniformly paid to all workers.

According to the wage rules enforced on March 1, 1978 (Evidence 1), retirement allowances under Article 16 shall be calculated based on the number of years of continuous service, and monthly salary shall be calculated as average wages at the time when the grounds for payment of retirement allowances arise. Article 17 provides that average wages shall be calculated as average wages at the time of the occurrence of the grounds for payment of retirement allowances. Article 17 provides that average wages shall be calculated by dividing the corresponding amount of 3/12 of the base salary, monthly allowances (monthly allowances) and monthly leave allowances paid between the last 3 months from the date immediately preceding the retirement, and the corresponding amount of 3/12 of the bonus allowances paid at the end of the preceding year before retirement by three equal amounts. Article 2 subparagraph 3 provides that the basic salary referred to in subparagraph 4 of Article 16 shall be calculated by adding "this salary and position allowances" to the total amount of the above allowances paid at the beginning of the preceding year, and Article 2 subparagraph 17 provides that the aforementioned allowances shall not be included in the witness allowance at the first 7th Ga and second 9.

In addition, according to the testimony of the above witness, the above food support expenses in the case of the defendant company are not paid as allowances based on the above wage provision, but merely were paid as welfare welfare expenses from January 1, 1978, and against this, evidence against this is not recorded (in accordance with the welfare rules of the defendant company attached to the statement of grounds for appeal, it seems that the above food support expenses were paid based on the above welfare rules that came into force since 1988 at the time of retirement of the plaintiffs).

Therefore, in light of the above provision of benefits before the above revision (Evidence B) of the defendant company, the allowance is not prescribed in the food allowance provision, the above provision of benefits (Evidence B) was not included in the food allowance provision prior to its enforcement, or the wage provision amended from January 1, 1979 was not included in the food allowance provision, and the above food allowance provision was not paid based on the above payment provision, it should be viewed that the food allowance is excluded from the amount of wages which are the basis for the calculation of the retirement allowance. According to the records, it is revealed that the above food allowance is above the retirement allowance calculation of the retirement allowance under the above provision of the Labor Standards Act except for the above food allowance calculation, and that the above food allowance is not included in the food allowance provision of the defendant company's wages under the above provision of the above provision of benefits (Evidence B). Thus, even if the above food allowance provision of the defendant company did not constitute the above food allowance calculation of the retirement allowance under the above provision of the Labor Standards Act within 1981, the above food allowance provision of the defendant company should not be included in the retirement allowance calculation of the above 14.

Nevertheless, solely for the reasons indicated in its reasoning, the lower court calculated the retirement allowance against the Plaintiffs by including the above-mentioned expenses in the scope of the wages, which are the basis for the calculation of the retirement allowance. The lower court erred by misapprehending the legal doctrine on the calculation of the retirement allowance, and by interpreting the above-mentioned provision, and thus disputing this issue is reasonable. In addition, the lower court added that each monthly salary of Nonparty 1, the deceased decedent 2, 2, 3, 4, 5, 6, and 7, 8, and 9, respectively, of the deceased decedent 1 (see, e.g., the monthly salary in accordance with the revised benefit calculation table in the attached Table 2 of the original trial) is erroneously written.

3. Ultimately, the lower judgment is entirely reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)