Whether the rules of employment and remuneration regulations that exclude bonuses from the calculation of retirement allowances violate Article 28 of the Labor Standards Act

The average wage as stipulated in Article 28 of the Labor Standards Act refers to the average wage as stipulated in Article 19 of the same Act, and the wage which serves as the basis for calculating the average wage shall include bonuses. However, Article 28 of the same Act provides the minimum line of retirement allowance to be paid to the retired worker. Thus, even if the rules of employment and remuneration regulations of the accused company exclude bonuses from the basis for calculating the retirement allowance, if the retirement amount of the plaintiff's retirement allowance calculated in accordance with the above rules of employment and remuneration regulations excludes bonuses from the basis for calculating the retirement allowance, if the amount of retirement allowance exceeds the minimum line guaranteed by the above rules of employment, the above rules of employment

Article 28 of the Labor Standards Act

Supreme Court Decision 71Da485 delivered on May 11, 1971, 73Da1384 delivered on November 13, 1973, 73Da105 delivered on December 24, 1974, and 76Da891 delivered on April 12, 1977, and 78Da2372,79Da136 delivered on February 27, 1979

Plaintiff

Attorney Yu Chang-chul, Counsel for the defendant-appellant

Jeonju District Court Decision 80Na32 delivered on May 1, 1980

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The defendant's attorney's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below recognized the fact that the plaintiff joined the defendant company on May 7, 1963 and retired from the defendant company on January 9, 1978 and the defendant company paid bonuses equivalent to 380 percent of monthly wages for one year before the plaintiff's retirement, and held that the above bonuses shall be deemed a kind of wages paid by the defendant company to the plaintiff, and Article 75 of the rules of employment and Article 29 of the Rules of Employment of the defendant company, which was enforced at the time of the plaintiff's retirement, excludes the above bonuses from the calculation data of average wages, and even if the bonuses are not based on the calculation of retirement allowances, they shall not be based on the calculation of retirement allowances under Article 28 of the Labor Standards Act. Accordingly, the defendant company's claim for additional payment of retirement allowances equivalent to the above bonuses is justified.

However, according to Article 66 of the Rules of Employment of the defendant company at the time of retirement, (1) bonus (2) bonus (3) retirement allowance and other temporary payment of the amount of wages under Article 67 of the Rules of Employment of the defendant company at the time of retirement, (2) the standard wage (1) as the kind of wage shall be the principal salary, (2) the amount of remuneration under Article 67 of the Rules of Employment shall be the day-time work allowance, night work allowance, or holiday work allowance, and (3) the amount of remuneration under Article 74 of the Rules of Employment shall be calculated as the amount of remuneration under Article 75 (Article 74) of the Rules of Employment. Article 84 of the Rules of Employment provides that, in calculating the amount of average wages, the amount of wages under Article 75 of the Rules of Employment shall not be included in the calculation of the amount of temporary wages and the amount of bonus under Article 74 of the Rules of Employment shall be calculated as the amount calculated by multiplying the average wage at the time of retirement by the payment rate under the same Article 2.

Therefore, if the original judgment is based on the same nature as the average wage set forth in the Labor Standards Act and the above rules of employment and remuneration regulations of the defendant company at the time of the above retirement, the above rules of employment and remuneration regulations of the above company shall be rejected without any reasonable reasoning, and it shall not be deemed erroneous that the above rules of employment and remuneration regulations of the company are included in bonuses as a matter of course. However, Article 28 of the Labor Standards Act provides that an employer shall set up a system that provides for the amount of average wages of not less than 30 days for the consecutive one year of employment and that of not less than 30 days of retirement pay to the plaintiff as a result of the above determination that the above rules of employment and remuneration regulations of the defendant company at the time of the above retirement shall be included in bonuses paid by the defendant company to the plaintiff at the time of the above retirement. However, the above provisions of Article 28 of the Labor Standards Act provide for the lower limit of the amount to be paid by the defendant to the plaintiff at the time of the above determination 179Da17879 decided.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jong-soo (Presiding Justice)