Plaintiff 1 and 19 others (Law Firm Han, Attorney Cho Jong-jin, Counsel for the plaintiff-appellant)

Iron-gun (Law Firm A&S, Attorney Lee Dong-won, Counsel for the defendant-appellant)

March 13, 2019

Suwon District Court Decision 2016Gahap5711 Decided August 8, 2018

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

The defendant shall pay to each of the plaintiffs the amount corresponding to the corresponding amount of additional prize in the appellate trial (attached Form 1), 5% per annum from October 23, 2016 to April 5, 2019, and 15% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining appeals are dismissed.

3. 60% of the total litigation costs are assessed against the plaintiffs, and the remainder is assessed against the defendant.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum from the day following the day of service of the complaint to March 5, 2018 and 15% interest per annum from the following day to the day of service of the petition for modification of the claim to the plaintiff (attached Form 1).

The part against the plaintiffs falling under the order to pay under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiffs the amount corresponding to the corresponding amount of appeal by each plaintiff (attached Form 1) and 5% per annum from the day following the day ( October 23, 2016) to the day ( August 8, 2018) of the judgment of the court of first instance, and 15% per annum from the following day to the day of full payment.

1. Basic facts

A. The Plaintiffs are the Defendant’s inorganic contract street cleaners.

B. The Defendant, like the Plaintiffs, paid basic pay, the bonus in this case (endend allowances, fixed-term allowances, physical training allowances), fixed-amount allowances (family allowances, special duties allowances, work encouragement allowances), welfare expenses (fixed-amount meal expenses, household allowances, transportation subsidies, and holiday leave expenses in this case) as remuneration to street cleaners such as the Plaintiffs (Provided, That household subsidies since 2016 were integrated into special job allowances).

C. In addition, the Defendant calculated legal allowances, such as the instant bonus (end-day allowance, fixed-time allowance, physical training allowance) and the instant holiday allowance and overtime work allowance, night work allowance, holiday work allowance, annual paid leave allowance, etc. based on the basic pay, fixed-term meal allowance, work encouragement allowance, and welfare allowance, household meal allowance, and traffic support allowance. Based on this, the Defendant calculated legal allowances such as the instant holiday leave and overtime work allowance, night work allowance, holiday work allowance, and annual paid leave allowance. The organization of remuneration items, method of payment, and ordinary wage are as follows.

The detailed items of remuneration and method of payment included in the main sentence - the basic rate for each service year - 1: 20% of monthly bonuses paid once a month - the end allowances 50% each time ( March, June, September, December) 】 the fixed-day allowance - the payment rate of 0% to each service year (minimum of 0%, maximum of 50%) - the payment rate of 0% to 0% - 50% of monthly ordinary wages - the payment of 250% of monthly ordinary wages - 10% of monthly ordinary wages - 250% of monthly ordinary wages - 0% of monthly ordinary wages - 0% of monthly ordinary wages - 10% of monthly ordinary wages - 0% of monthly ordinary wages - 0% of monthly ordinary wages - 0% of monthly ordinary wages - 0% of monthly ordinary wages - 0% of monthly regular allowances - 0% of monthly regular allowances - 0% of daily allowances - 0% of 0.

D. In addition, the Defendant calculated the hourly ordinary wage for 40 hours per week and for 4 hours paid in addition to contractual work hours per week, 8 hours per Saturday, and on Sundays, the standard number of monthly ordinary wage calculation hours per month was 226 hours.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 5, the purport of the whole pleadings

2. Organization of the issues;

This case is a case claiming the difference between the Plaintiffs’ overtime work allowances, night work allowances, holiday work allowances, and annual paid leave allowances, which the Plaintiffs claim that they should receive from October 2013 (Plaintiff 13 June 2014) to September 2016. The part disputing the Plaintiffs and the Defendant is three.

A. First of all, it is a matter of whether the bonus in this case excluded from ordinary wages (end-end, fixed-term, and physical training) and the instant holiday bonus constitute ordinary wages. The plaintiffs asserted that the bonus in this case, etc. are ordinary wages paid periodically, uniformly, and uniformly. Accordingly, the defendant asserts that the bonus in this case, etc. in this case, etc. is denied the remuneration and fixedness of contractual work due to the explicit or implied agreement or labor-management practice established.

B. The plaintiffs' labor contract provides that working hours shall be 40 hours a week from 40 hours a day to 8 hours a day, and that Saturday and Sundays shall be paid leave or paid leave shall not be disputed between the parties. However, as the defendant's "Standards for Payment of Remuneration for Environmental U.S. Wage (No. 2-1, No. 2-2)," the daily standard working hours are 26 hours a week, unlike Sundays, for 4 hours a paid leave, unlike Sundays, 226 hours a month's ordinary wage calculation standard hours a day as 4 hours a week [40 hours a week + a paid leave of 40 hours a Saturday + a paid leave of 8 hours a day a day ± (365 days a day ± 7 days a day a week) ± (12 months a day a day a week, a small number of days a day a week is less than ; hereinafter the same shall apply] ± 4 hours a week a day a week is also claimed that the defendant is also able to calculate the weekly ordinary wage ± 4 hours a day a day.

C. Finally, in the event that the plaintiffs conduct a street cleaning at night, the issue is whether the night allowance should be paid to the plaintiffs. This part of the issue is not subject to the judgment of the court in relation to other issues, but this part of the issue itself was recognized by the first instance court as the night work and most of the night work hours claimed by the plaintiffs. The defendant did not appeal against this part.

3. Determination

A. Whether the instant bonus, etc. is recognized as ordinary wages

(1) Ordinary wages stipulated under the Labor Standards Act as the basis for calculating premium pay for overtime, night, and holiday work hours and the minimum amount of average wage means money and valuables agreed to be paid periodically, uniformly, and fixedly to workers for contractual work (in the case of a contract worker), which are ordinarily provided for contractual work hours. Wages exceeding one month may be included in ordinary wages if they are paid periodically, uniformly, and periodically. Furthermore, even if a worker who worked on an optional day retires from office, regardless of the name of the wage, the fixed wage refers to the minimum amount of wage to be paid automatically and definitely for such daily work even if the worker retires from office, and thus, it is difficult to determine whether the wage was paid in advance at the specific point of time, regardless of whether the additional condition is met, or not, if it is difficult to determine whether the wage was paid in advance at the specific time of employment or not, it is difficult to determine whether the wage was paid in advance at the specific time of employment or not, regardless of whether the wage was paid in advance at the specific time of employment.

(2) The instant major holiday bonus does not constitute ordinary wages.

Considering the overall purport of arguments in the statements Nos. 8, 9, 28, and Eul evidence Nos. 10 through 20, and 32 (including paper numbers), the expenses for the instant holiday are paid in full on a specific day around the New Year’s Day and New Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Day and Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Day and Year’s Year’s Year’s Year’s Year’s Year’s Year’s Day and Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Day and Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Day.

(3) The instant bonus (end allowances, fixed-term allowances, and physical training) constitutes ordinary wages.

The instant bonus can be deemed as money and valuables agreed to be paid by an employer and an employee with respect to the labor determined by ordinarily providing work hours, rather than the wage of items, depending on actual work performance, which vary depending on which the payment is to be made. The final allowance and physical training expenses are continuously paid at regular intervals, and are uniformly paid. The fixed-term allowance was continuously paid at regular intervals, and the fixed-term work allowance was paid in proportion to the continuous work period, but it is reasonable to pay the corresponding wage to all workers who have served more than a certain continuous work period.

In addition, it is difficult to regard the bonus of this case as wages lacking fixedness.

① There is no explicit provision regarding the bonus in this case as wages to be paid only to street cleanerss employed at a certain time on the payment date or any other specific time.

The defendant asserts to the effect that the "Guidelines for Handling Local Public Officials' Allowances, etc. (No. 3)", such as the "Guidelines for Handling Affairs of Allowances, etc. for Local Public Officials (Evidence No. 2)" as the "Guidelines for Handling Affairs of Remuneration, etc. of Local Public Officials, and the "Regulations for Management of Contract Workers in the War Reserve Forces (Evidence No. 2)" as a substitute for this, and the "Regulations for Management of Contract Workers in the War Reserve Forces (Evidence

However, “Management Regulations for Contract Workers in the Korean War” (No. 2) is only a provision abolished on September 30, 2009, which was before the period for which the Plaintiffs claimed the difference of allowances. This Management Regulations only provides that the “procedures” of the Guidelines for Handling of Remuneration, etc. of Local Public Officials shall apply mutatis mutandis to overtime hours and holiday work allowances for contract workers (Article 32(2)). Rather, it separately provides for bonuses and only stipulates the amount and time of payment (Article 31).

Article 24(1) of the former Regulations on the Management of Contract Workers in the Korean War (Evidence 2) which was repealed on September 30, 2009 and enforced by the Plaintiffs during the period for which the payment of allowances is sought by replacing the “Regulations for the Management of Contract Workers in the Korean War (Evidence 4)” (Article 24(3) of the former Regulations on the Management of Contract Workers in the Korean War (Evidence 4) provides that “There is no express provision on the terms and conditions of payment of the instant bonus, and “the head of the Gun shall appropriately compile the relevant budget, such as salaries, allowances, etc., of contract workers in the Korean War, etc., in accordance with the basic guidelines for the compilation of the budget.” (Article 24(1) of the former Regulations on the Management of Contract Workers in the Korean War (Evidence 2), and such content alone cannot be deemed to have explicit grounds for

② It cannot be said that there was an implied agreement or a labor-management practice has been established that the bonus in this case was paid only to the employee in office at the payment date or any other specific time.

Comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 10 through 20 and 32 (including paper numbers), it appears that the defendant's work as the street cleaners and 11 of the worker was paid for June 30 or December 31, 2018, among the bonus in this case, at the time of retirement from June 30 to December 31, 2018, the regular allowances, physical training allowances were not paid for other months, and the regular allowances, physical training allowances were not paid only for one month paid by one worker retired as of January 31, 2015, and the regular allowances, physical training allowances were not paid for other months (According to the statement No. 29-1 of the evidence No. 29), but it is not appropriate to fully pay the basic allowances such as the final allowances, regular allowances, and physical training allowances for the street cleaners who died on July 25, 2013.

However, there is no collective declaration of intent or collective agreement on the payment of allowances at the time of retirement because there is no trade union as the plaintiffs such as the plaintiffs, and there is no ground to view that the payment of allowances to the street cleaners such as the plaintiffs should be made only during the pertinent month among the bonuses of this case. It is difficult to say that there is an implied agreement between the retired worker and the defendant or labor-management practice that the worker should comply with is established on the ground that the retired worker did not individually receive some bonuses.

The bonuses in this case are paid 20% of the monthly ordinary wage in linkage with the monthly ordinary wage determined by the Defendant, with 50% of the monthly ordinary wage in March, June, September, and December, 00, 00% of the monthly ordinary wage in January and July, 250% of the monthly ordinary wage, and 250% of the monthly ordinary wage in April, May, August, 8, 100, and 50% of the monthly ordinary wage in November. Thus, it is unreasonable to view that 450% of the monthly ordinary wage is 450-550% of the monthly ordinary wage to be paid monthly, and that 10% of the monthly ordinary wage should not be considered to be paid as 10% of the monthly ordinary wage in the month when 10 or more years old, and that 10% of the monthly ordinary wage is not paid as 10% of the monthly ordinary wage in the month when 10 or more years old, and 25% of the retirement allowance of this case can be considered to be paid.

Meanwhile, according to the evidence evidence No. 10, Plaintiff 1, who was employed on March 2012, appears to have received the weather allowances calculated on a daily basis based on the period of service, as in relation to the weather allowances paid in March, 2012, as in the basic salary, etc. If so, regardless of whether he/she had been employed in contractual work or not, the weather allowances are not paid to those who hold office at a specific time without asking about the details of his/her provision of labor, but can be deemed to have the nature of the consideration for contractual work.

(b) The standard hours for the calculation of ordinary wages;

(1) When calculating an hourly ordinary wage as a monthly wage, that amount shall be divided into the standard hours for calculating the monthly ordinary wage (one-half of the hours calculated by multiplying the standard hours for calculating the weekly ordinary wage by the average number of weeks per year), (Article 6(2)4 of the Enforcement Decree of the Labor Standards Act). The standard hours for calculating the weekly ordinary wage refer to the total number of hours calculated by adding the hours paid in addition to the contractual hours per week and the contractual hours (Article 6(2)3 of the Enforcement Decree of the Labor Standards Act). In addition, contractual work hours refer to the hours determined between an employee and an employer within the scope of 40 hours per week, and eight hours per day (Article 2(1)8 of the Labor Standards Act).

(2) When a monthly wage is paid to a worker as a monthly wage, the monthly wage includes the wage for paid holidays as stipulated in Article 55 of the Labor Standards Act. The wage for paid holidays is paid only to a worker with perfect attendance of contractual working days, and it does not constitute ordinary wage on a regular and uniform basis. Thus, in principle, the monthly ordinary wage is calculated by dividing the amount calculated by deducting the wage for paid holidays from the monthly wage by the number of contractual working hours. However, in calculating the monthly ordinary wage, it is deemed that the said monthly wage is calculated by dividing the “amount calculated by adding the said wage to the monthly ordinary working hours” by dividing the “amount calculated by adding the monthly average working hours to the monthly average working hours,” and thus, it is difficult to calculate the hourly ordinary wage in such a manner (see Supreme Court Decision 97Da28421, Apr. 24, 1998).

(3) According to the statement in the evidence No. 1, the daily working hours of the plaintiffs and the defendant set that the daily working hours shall be eight hours from the daily working hours to the Friday, and Saturdays shall be referred to as "day off duty," and Sundays shall be referred to as "day off duty," but the name is somewhat different, but there is no special difference between the said hours, and there is no ground to view that the wages for Saturdays and Sundays paid leave are calculated differently. Thus, the number of daily working hours of the plaintiffs shall be eight hours, and the daily working hours shall be deemed eight hours, as in the case of Saturdays, as in the number of paid leave hours of Saturdays in addition to the prescribed working hours, in relation to the paid hours in addition to the fixed working hours, the daily ordinary hours shall be deemed eight hours, which are the daily working hours. The standard number of hours for calculating the monthly ordinary wages for calculating hourly ordinary wages is 243 hours [=40 hours per week paid leave hours + 8 hours per week on paid leave + 8 hours per day + 8 days per day] ± 36 days per day].

(4) As alleged by the Plaintiffs, in the meantime, the Defendant set the standard number of hours for calculating the monthly ordinary wage by 226 hours with the number of hours of paid leave hours on Saturdays as stipulated in the “Standards for Payment of Remuneration for Environmental Unified Institute (Evidence A2-1, 2-2)” as 4 hours. However, in this case, under the premise that the paid statutory allowance is in violation of the Labor Standards Act, the payment of the difference between the amount of paid statutory allowances deducted from the actual paid statutory allowances under the Labor Standards Act is sought, the standard number of standard hours for calculating the monthly ordinary wage under the Labor Standards Act is to allow the individual comparison of all the elements that are more favorable than the standard of the Labor Standards Act, and thus, it does not coincide with Article 15 of the Labor Standards Act (see Supreme Court Decision 2006Da81523, Nov. 29, 2007), the Plaintiffs’ assertion that the standard hours for calculating the monthly ordinary wage should not be accepted.

(c) Whether to recognize night work for street cleaning;

This part is justified in the judgment of the first instance that recognized the plaintiffs' assertion, thereby admitting the relevant part as it is.

Considering the overall purport of the Plaintiff’s statements and arguments about night work hours, the Plaintiffs, claiming unpaid night work hours, were engaged in horizontal cleaning [this evidence No. 11 and No. 25) and working hours for street cleaners (Evidence No. 27)] of the pertinent month, claiming that they were engaged in night work (from 10:0 a.m. to 6:0 a.m.). In the case of street cleaning, the number of hours worked 4 hours after commencement of the work before and after 0:0 a.m. and the rest of the work when they were engaged in other work than the night work. However, according to the Plaintiff’s aforementioned statements and arguments, the Plaintiffs’ additional night work hours are deemed to have been paid from 8:0 p.m. or 9:0 p.m. (in principle, from 9:0 a.m. to 6:0 a.m.). The Plaintiffs’ additional night work hours are deemed to have been paid for more than 4 hours a day, as alleged by the Plaintiffs during the above night work hours.

(d) Calculation of unpaid statutory allowances;

Based on the foregoing standard, if the difference between the overtime work allowance, night work allowance, holiday work allowance, annual paid leave allowance and allowance that the plaintiffs are to receive, is calculated based on the difference between the amount of overtime work allowance, night work allowance, holiday work allowance, and annual paid leave allowance and allowance that the plaintiffs receive, (attached Form 2), (attached Form 3), and (attached Form 4), the amount of claims and the amount of prizes by each plaintiff are adjusted (attached Form 1). The amount, method and result of calculation are not in dispute between the plaintiff and the defendant, and part of the difference is recognized by evidence

[Attachment 2], [Attachment 3], and [Attachment 4] shall be supplemented as follows:

○ (Attached Form 2) is an hourly ordinary wage for each plaintiff, which is newly calculated by applying the standard number of hours for calculating monthly ordinary wages as 243 hours, among the cases where the bonus in this case is included in ordinary wages and does not include the major holiday expenses in this case.

○○ (attached Form 3) is an overtime allowance, holiday allowance, night work allowance, and annual leave work allowance for each Plaintiff, which is newly calculated as the hourly ordinary wage calculated in attached Form 2. The holiday work on December 7, 2015 of this thousands of Plaintiffs, as asserted in the application for amendment to the purport of the claim made on March 7, 2018.

In ○○ (attached Form 3), night work allowances were calculated by reflecting night work of street cleaning claimed by some plaintiffs. The relevant part is as follows:

Plaintiff 1. Plaintiff 1: (a) from October 1, 2013 to December 2, 2014; (b) from June 2, 2016 to September 2, 2016, Plaintiff 5 to April 5, 2016, Plaintiff 6: (c) from October 10 to April 6, 2016; (d) Plaintiff 1, October 6, 2010 to December 7, 2015, Plaintiff 6: (d) Plaintiff 1, October 10, 2013; and (e) Plaintiff 6: (e) Plaintiff 1, October 201, 2015 to September 1, 2015; and (e) Plaintiff 1, May 6, 2015 to September 1, 2015, 2016 to Plaintiff 6: (e) Plaintiff 1, May 1, 2013 to 1, 2016.

○○ [Attachment 4] deducts the Plaintiffs’ overtime work allowances, etc. from the overtime work allowances, etc. newly calculated in [Attachment 3]. If there are a large amount of the previously paid amount during the calculation process, the difference was zero. In the first instance judgment, Plaintiff 19-20 of the first instance judgment revised the amount of the previously paid overtime work allowances in 2014.

4. Conclusion

A. As to the corresponding amount in the column for the “amount cited in the court of first instance” of the Plaintiff’s [Attachment 1] and the corresponding amount in the “amount cited in the court of first instance” cited in the court of first instance (the pertinent amount does not exist), the Defendant, upon the Plaintiff’s request, dispute over the existence and scope of the Defendant’s performance obligation from October 23, 2016 to August 8, 2018, which is the date of delivery of the complaint, with the rate of 5% per annum under the Civil Act until August 8, 2018, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the date of delivery of the complaint to the date of full payment. As to the corresponding amount in the column for the “amount cited in the court of first instance” cited in the court of first instance, 15% per annum from the date of delivery of the complaint to October 23, 2016 to the date of delivery of the complaint by the Defendant, 25% per annum.

B. The judgment of the court of first instance is inappropriate with a different conclusion. The part of the judgment of the court of first instance which partially accepted the plaintiffs' appeal and revoked the part against the plaintiffs who ordered additional payment of money among the judgment of the court of first instance and ordered additional payment to the defendant.

[Attachment]

Judges Man-man (Presiding Judge)