[1] In a case where Eul et al., employed as a driver of a bus passenger transport business by Gap et al., sought the difference between various allowances and allowances already paid, including ordinary wages, the case affirming the judgment below which held that the above food expenses did not constitute ordinary wages in a case where Gap directly paid to workers or refunded the right to food that had not been used, but in a case where workers actually paid meals at a designated engineer restaurant, it merely paid the relevant expenses

[2] Whether holiday work paid on holiday work under Article 56 of the former Labor Standards Act includes work on holiday work as prescribed on holiday work under the collective agreement or rules of employment (affirmative), and the standard for determining whether holiday work was determined on holiday work

[3] The case holding that in a case where Gap corporation, which runs a bus passenger transport business, established a wage agreement with a trade union, provides that "the number of days worked per month shall be 22 days (20 days in February), and where the number of working days per month exceeds 22 days, a holiday allowance shall be paid according to the wage calculation table, and where the number of working days per month exceeds 26 days (24 days in February)," a "Holiday allowance" shall be paid to Eul, which is an employee of Eul, etc., separately from weekly paid holiday allowance, and as prescribed in the wage calculation table, a "Holiday allowance" was paid to 26 days (24 days in February), and Eul et al. sought against Gap for full holiday allowance for overtime work hours, the case holding that in light of all circumstances, Gap company's workplace should be deemed as a "days allowance" for overtime work days exceeding 26 days per month (24 days in February)

[4] Whether the weekly holiday allowance paid on weekly holidays and the holiday allowance paid on Workers’ Day are calculated on the basis of ordinary wages (affirmative)

[5] Whether an employer is allowed to dispute working hours on the ground that working hours fall short of the actual working hours agreed upon (negative)

[1] Articles 2(1)5 and 56 of the former Labor Standards Act (Amended by Act No. 15513, Mar. 20, 2018); Article 6 of the Enforcement Decree of the Labor Standards Act / [2] Articles 55 and 56 of the former Labor Standards Act (Amended by Act No. 15513, Mar. 20, 2018) / [3] Articles 55 and 56 of the former Labor Standards Act (Amended by Act No. 15513, Mar. 20, 2018); Article 55 and 56 of the former Labor Standards Act (Amended by Act No. 15513, Mar. 20, 2018); Article 6 of the Enforcement Decree of the Labor Standards Act / [5] Article 56 of the former Labor Standards Act (Amended by Act No. 15513, Mar. 20, 2018)

[2] [4] Supreme Court Decision 2011Da27707 Decided March 28, 2013 / [2] Supreme Court Decision 90Da14089 Decided May 14, 1991 (Gong1991, 1617), Supreme Court Decision 2016Da9704, 9711 Decided August 14, 2019 (Gong2019Ha, 1713), Supreme Court Decision 2014Da41520 Decided January 16, 2020 (Gong2020Sang, 414) / [5] Supreme Court Decision 2010Da91046 Decided March 29, 2012 / [4] Supreme Court Decision 2014Da714949 Decided January 28, 2010

See Attached List of Plaintiffs (Law Firm Oup, Attorneys Kang Jong-ho et al., Counsel for defendant-appellant)

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Geumnam Transportation Co., Ltd. (Law Firm Shin-ro, Attorneys Cho Yong-pon et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2012Na5306 decided June 24, 2015

All appeals are dismissed. The costs of appeal by the remaining plaintiffs except the plaintiff ○○○, are assessed against the above plaintiffs, and the costs of appeal by the defendant are assessed against the defendant.

1. Judgment on the grounds of appeal by the remaining plaintiffs except the plaintiff ○○○

A. Ground of appeal No.1

The lower court determined that the Defendant’s bonus paid only to the employees employed as of every month’s payment date under the wage agreement does not constitute ordinary wages because it lacks fixedness.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on ordinary wages, contrary to what is alleged in the grounds of appeal.

B. Ground of appeal No. 2

The court below determined that the food substitute of this case does not constitute ordinary wages because the defendant did not refund the right to food that was directly paid to workers or that was not used by the defendant to the employees, but it did not constitute ordinary wages in a case where a worker actually provided meals at a designated article restaurant.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on wages or ordinary wages, contrary to what is alleged in the grounds of appeal.

C. Ground of appeal No. 3

1) Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018; hereinafter “former Labor Standards Act”) includes not only weekly holiday work prescribed in Article 55 of the same Act, but also weekly work determined as holiday work under a collective agreement or rules of employment, etc. (see Supreme Court Decision 90Da14089, May 14, 1991). Whether a holiday is determined should be determined by comprehensively taking into account the language and text of the provision related to holiday work and the background leading up to such provision, the regulatory system and customs on working hours in the same industry as the relevant workplace, the name and amount of wages actually paid, and the method of calculating the amount of wages (see Supreme Court Decision 2016Da97016, Aug. 14, 2019).

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The wage agreement entered into between the Daejeon Metropolitan City Regional Bus Workers’ Union and the Daejeon Metropolitan City Bus Transport Business Association representing the Defendant in 208, 2009, and 2010 (hereinafter “each of the instant wage agreements”) stipulates that holiday allowances shall be paid in accordance with the wage calculation schedule in cases where the number of working days per month exceeds 22 days (20 days for February) and the number of working days per month.

B) According to each wage calculation table prepared in accordance with each of the instant wage agreements (hereinafter “each of the instant wage calculation table”), where the number of working days per month exceeds the full number of workers is between 23 and 26 days (21 and 24 February), an extended allowance is paid for every 9 hours calculated by adding 50% of the Si wage base to 50% of the Si wage per day. On the other hand, where the number of working days per month exceeds 26 days (24 days in February), where the number of working days exceeds 26 days (24 days in February), an “basic wage” corresponding to 8 hours per hour per day, an “extension allowance” equivalent to 50% of the Si wage base, and a “Holiday allowance” equivalent to 50% of the Si wage base.

C) The Plaintiffs and the Defendant set the day a week as a weekly holiday, and the Defendant separately paid the Plaintiffs a “day allowance” equivalent to 50% of the basic rate of eight hours per day only for the day exceeding twenty-six (26th day of February) working days during the hours of overtime work, as set out in the wage calculation schedule of the instant case, separately from the weekly holiday allowance.

3) On the premise of the above facts, the lower court determined that the Defendant is obligated to pay the difference of property-fixed holiday allowances only for working days exceeding 26 days of working day (24 days in February) in a month, on the ground that the Defendant appears to have agreed to pay holiday allowances from the 27th day (25 days in February) under the labor-management agreement despite changing the number of working days in the month, and that it is difficult to deem the said agreement to be in violation of the Labor Standards Act, and that the Defendant is not able to accept the Plaintiffs’ claim for holiday allowances in excess

4) Examining the reasoning of the lower judgment in light of the aforementioned legal principles, it is reasonable to view that the Defendant’s workplace sets the term “days” only for the day exceeding 26 days of monthly work (24 days in February) out of the full-time overtime work hours. Therefore, the lower court’s conclusion is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on holiday

2. Judgment on the Defendant’s grounds of appeal

A. Ground of appeal Nos. 1, 2, 4, and 10

The lower court determined that the agreement is invalid even if the Defendant agreed to exclude transportation expenses and driver’s insurance money from the calculation of ordinary wages, since it constitutes a fixed wage for which the amount of the fixed wage determined to be paid to the employee when the employee provided contractual work on a voluntary date, and thus, the agreement is invalid. In addition, the lower court calculated the amount of the retirement allowance that the Defendant shall pay to the Plaintiff 21 and 22 according to the average wage, including the aforementioned transportation expenses and driver’s insurance money.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the calculation of ordinary wages or retirement allowances, contrary to what is alleged in the grounds of appeal.

B. Ground of appeal No. 3

The lower court determined that it is difficult to view that the agreement on the comprehensive wage system between the Plaintiffs and the Defendant was concluded, based on its stated reasoning, on the grounds that the wage agreement and the labor-management agreement in the instant case clearly distinguish wages from the basic wage and overtime allowances, and calculates the amount of basic wage and overtime allowances based on the basic hourly wage.

In light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the comprehensive wage system, thereby affecting the conclusion

C. Ground of appeal No. 5

The lower court determined that even if the Defendant agreed to grant two-day overtime work upon the request of workers through the wage agreement, such agreement alone cannot be deemed as being naturally included in the standard hours for calculating the monthly ordinary wage.

Examining the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment

D. Ground of appeal Nos. 6 and 9

Article 55 of the former Labor Standards Act provides that “an employer shall grant an employee at least one paid holiday per week on average,” and the Act on the Establishment of Workers’ Day stipulates that “ May 1 shall be the Workers’ Day, and this day shall be the paid holiday under the Labor Standards Act.” Both weekly paid holiday allowances and holiday allowances paid on Workers’ Day are deemed to have worked even if an employee does not actually work, and thus, it is a wage that is paid on the basis of ordinary wages in light of its nature, given that both a weekly holiday allowance and holiday allowance paid on Workers’ Day are deemed to have worked even if the employee does not work (see, e.g., Supreme Court Decisions 2009Da74144, Jan. 28, 2010; 2011Da2707, Mar. 28, 2013).

The lower court calculated weekly holiday allowances and holiday allowances paid on the basis of ordinary wages pursuant to the aforementioned legal doctrine. In so doing, it did not err by misapprehending the legal doctrine on weekly holiday allowances and holiday allowances paid on the Workers’ Day, contrary to what is alleged in the grounds of appeal.

E. Ground of appeal No. 7

If a labor-management agreed to consider a certain time as an extension work hours regardless of the actual extension work hours, an employer is not allowed to dispute the actual overtime work hours on the ground that the actual overtime work hours do not reach the above agreed time (see Supreme Court Decision 2010Da91046, Mar. 29, 2012, etc.).

The lower court rejected the Defendant’s assertion that the duty to pay overtime allowances should be acknowledged within the actual working hours, as the Plaintiffs’ actual working hours are less than those stipulated in each of the instant wage agreements. In so doing, it did not err by misapprehending the legal doctrine on the calculation of working hours, as otherwise alleged in the grounds of appeal

F. Ground of appeal No. 8

The lower court rejected the Defendant’s assertion that the Plaintiffs can claim for night work allowances only for the amount excluding the amount reflected in the overtime allowances, on the grounds stated in its reasoning, since night work hours and overtime work hours overlap, such as that the hours for night work and overtime work hours, which are separate from those stipulated in each of the instant wage agreements.

Examining the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on night work allowances, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal by the plaintiffs except for the plaintiff ○○○, are assessed against the above plaintiffs, and the costs of appeal by the defendant are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Sang-ok (Presiding Justice)