[1] Whether the “period of industrial action” under Article 2(1) of the former Enforcement Decree of the Labor Standards Act is included by the period of industrial action (negative)

[2] The method of calculating the average wage in a case where the average wage calculated pursuant to Article 19 of the former Labor Standards Act is considerably less or more than the ordinary wage due to changes in the amount of wage due to the special and contingency circumstances

[1] Considering the purport and nature of Article 2(1) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158, Dec. 11, 2003) which specifically consideration an employee to prevent disadvantages in the calculation of average wages on the grounds that it is inappropriate for the employee to exercise his/her legitimate right or responsibility, the term “period of industrial action under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act” under subparagraph 6 refers only to the period of industrial action meeting the requirements for the subject, purpose, procedure, means and method of industrial action guaranteed by the Constitution and the Trade Union and Labor Relations Adjustment Act. If it is interpreted to be included in subparagraph 6 without any restriction until an illegal industrial action that does not meet the above requirements, the application scope or limitation of subparagraph 6 cannot be measured and thus, the principle on the method of calculating average wages itself leads to an uninfiled situation. This is because the purpose and nature of Article 2(1) of the former Enforcement Decree of the Labor Standards Act to harmonize the principle of calculating average wages and the interests of workers, or it is not appropriate.

[2] Even if the average wage was calculated in accordance with Article 19 of the former Labor Standards Act (amended by Act No. 6974 of Sep. 15, 2003) and Article 2 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158 of Dec. 11, 2003), the average wage should be calculated in a reasonable and reasonable way that can reflect the ordinary living wage of the worker, if there is a change in the amount of wage due to the worker's retirement special and incidental circumstances, including the total period of the worker's retirement, the period of the change in the amount of the wage, the length of the change in the amount of the wage, the degree of the change in the amount of the wage, etc.

[1] Article 2 (1) 6 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158 of Dec. 11, 2003) / [2] Article 19 (1) (see current Article 2 (1) 6), Article 19 (2) (see current Article 2 (2)) of the former Labor Standards Act (amended by Presidential Decree No. 6974 of Sept. 15, 2003), Articles 2 (1) and 4 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158 of Dec. 11, 2003)

[2] Supreme Court Decision 98Da49357 delivered on November 12, 1999 (Gong1999Ha, 2480) Supreme Court Decision 2000Da18714 delivered on December 27, 2002 (Gong2003Sang, 491) Supreme Court Decision 2001Da12669 Delivered on July 25, 2003 (Gong2003Ha, 1814)

Plaintiff 1 and 18 others (Attorneys Kim Young-deok et al., Counsel for the plaintiff-appellant)

Defendant 1 Co., Ltd. (Law Firm Lee & Lee, Attorneys Lee Jong-han et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na49800 delivered on February 7, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

Article 19(1) of the former Labor Standards Act (amended by Act No. 6974, Sept. 15, 2003; hereinafter referred to as the “former Labor Standards Act”) provides that “The average wage in this Act means the amount calculated by dividing the total amount of wages paid to the relevant worker during the three months prior to the date on which the cause for calculating the average wage occurred by the total number of days during the three months prior to the date on which the cause for calculating the average wage occurred, by the total number of days during the three months prior to the employment.” This is generally because the method of calculating the average wage generally reflects the ordinary living wage of the worker at the

However, in all cases, the above principle of calculating average wages may be uniformly applied, or may result in a harsh result to workers. Thus, Article 19(2) of the former Labor Standards Act provides that “If the amount calculated under paragraph (1) is less than the ordinary wages of the worker concerned, the ordinary wages shall be the average wages.” Meanwhile, Article 2(1) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158, Dec. 11, 2003; hereinafter referred to as the “former Enforcement Decree of the Labor Standards Act”) provides that the minimum amount of average wages shall be the minimum amount of average wages. Under Article 19(1) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 18158, Dec. 1, 2003; hereinafter referred to as the “former Enforcement Decree of the Labor Standards Act”), the period of suspension from work (No. 2); the period of time after childbirth (see subparagraph 3); the period of time for workers’ injury or disease due to work performance; the period of the worker’s occupational injury or disease.

In light of the purport and nature of Article 2(1) of the former Enforcement Decree of the Labor Standards Act, which specifically consideration an employee to prevent disadvantages in calculating average wages due to a reason that is inappropriate for the employee to exercise his/her legitimate right or responsibility, the term “period of industrial action under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act” under Article 2 subparag. 6 of the same Act means only the period of industrial action satisfying the requirements of the subject, purpose, procedure, means and method as a legitimate industrial action guaranteed under the Constitution and the Trade Union and Labor Relations Adjustment Act. If it is interpreted to be included in subparag. 6 without any restriction until the illegal industrial action that does not meet the above requirements, then the application scope or limit under subparag. 6 cannot be measured, thereby resulting in the situation in which the principle on the method of calculating average wages itself becomes unreasonable. This is because the purpose and nature of Article 2(1) of the former Enforcement Decree of the Labor Standards Act, or the protection of employees’ interests, is needed to harmonize with the purpose and nature of the calculation of average wages, or the responsibility of workers, is not appropriate.

Meanwhile, even if the average wage was calculated in accordance with the principle under Article 19 of the former Labor Standards Act and Article 2 of the Enforcement Decree of the former Act, there was a change in the amount of wage due to the worker's special and incidental circumstances that s/he retires for a certain period of time, and as such, the average wage calculated as above should be calculated in a comprehensive assessment of all the circumstances, including the total period of work and the change in the amount of wage for a certain period of time, and the degree of changes in the amount of wage. In exceptional cases where it is recognized that the amount of retirement pay is significantly less or more than ordinary wage, it is not permissible in light of the spirit of the Labor Standards Act that intends to calculate the amount of retirement pay based on the ordinary wage. Thus, the calculation of the amount of retirement pay based on such exceptional case is not possible in light of the spirit of the Labor Standards Act that intends to calculate the amount of retirement pay based on the ordinary wage. Thus, if the average wage of the worker is significantly less or more than ordinary wage, it should be separately calculated in a reasonable and reasonable way.

In the same purport, the lower court is justifiable to have rejected the Plaintiffs’ assertion that the industrial action period in this case, which did not meet the requirements as a legitimate industrial action guaranteed by the Trade Union and Labor Relations Adjustment Act, and the wages received during that period, should be calculated as retirement allowances by excluding from the calculation of average wages. In so doing, the lower court did not err by misapprehending the legal principles as to the interpretation and application of Articles 2(1)6 and 4

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)