(영문) 대구고등법원 2015.4.1.선고 2014나21503 판결

The judgment of the court of first instance is revoked. The defendant takeover intervenor will pay to the plaintiffs the money recorded in the column of "the aggregate of the salaries of extended and night work allowances in annexed Form 2" and the amount recorded in the column of "existing Claim" among them, the amount of money calculated by 20% per annum from the day following the delivery of the complaint of this case to the day of complete payment from the day after the delivery of the application for change of the purport of the claim and the cause of the claim of this case to April 4, 2013.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by the respective entries in Gap evidence 1 through 4 and Eul evidence 1 (including numbers when they are not separately indicated; hereinafter the same shall apply) and the whole purport of pleadings, and there is no counter-proof.

A. The Plaintiffs were changed to “F of the Company F” on February 5, 2013 for passenger transportation services, etc., and were employed in the first instance trial as a driver and were employed as a member of the Korea Transport Industry Trade Union (Provided, That Plaintiff C72 was replaced on December 15, 2010; Plaintiff C75 was replaced on February 16, 2012; and Plaintiff C91 was removed on January 31, 2012, respectively).

B. The wage level for the Plaintiffs is the collective agreement of 209, 2010, 2011, and 2012 concluded between E and the National Transport Industry Trade Union (hereinafter collectively referred to as the “instant collective agreement”). As the reference, the term of validity of the collective agreement of 2009 was determined pursuant to the instant collective agreement from June 1, 2009 to September 30, 2010; the term of validity of the collective agreement of 2010 collective agreements was from October 1, 2010 to September 30, 2012; and the term of validity of the collective agreement of 2012 from October 1, 2012 to September 30, 2014) and the wage agreement.

Work hours per day shall be 8 hours (including 1 hours per hour in extended 7 hours). ② Work hours may be extended, night, and holiday work in accordance with the Labor Standards Act, taking into account the characteristics of transportation business under the Labor Standards Act.2 The number of working days per month in the form of labor shall be 19 full-time work days; 3) bonus payment method and standard 1) bonus payment shall be paid as follows on the basis of the basic salary class 1: (4) The bonus shall be paid in four installments each quarter only to the person who works on the due date; (100,000 won for each quarter of a year; and (2) the leave allowance shall not be included in ordinary wages (Article 6(1) of the Labor Standards Act).

B. The wage level for the Plaintiffs was determined pursuant to the collective agreement of 209, 2010, 2011, and 2012 concluded between E and the National Transport Industry Trade Union (hereinafter collectively referred to as “instant collective agreement”). As the reference, the term of validity of the collective agreement of 2009 was from June 1, 2009 to September 30, 2010; the term of validity of the collective agreement of 2010 collective agreements was determined from October 1, 2010 to September 30, 2012; the term of validity of the collective agreement of 2012 from October 1, 201 to September 30, 2012; and the term of validity of the collective agreement of 2012 is as follows.

C. The Defendant Intervenor was a corporation established for the purpose of passenger transportation services, etc. on January 4, 2013. On February 1, 2013, the Defendant Intervenor acquired E’s urban bus vehicles and service routes from E, and succeeded to the employment of employees under his/her control or the obligations related thereto.

2. The plaintiff's assertion

Pursuant to Article 56 of the Labor Standards Act, an employer shall pay the ordinary wage for overtime work and night work in addition to 50 percent or more of the ordinary wage, and the above ordinary wage shall include bonuses paid by the Defendant to the Plaintiffs in accordance with the collective agreement and wage agreement, and the summer leave expenses. Nevertheless, the Defendant calculated and paid overtime work allowances and night work allowances by using only the basic rate as ordinary wage without including bonuses and summer leave expenses for the Plaintiffs from October 1, 2009 to November 30, 2012.

Therefore, the Defendant is obliged to pay the Plaintiffs the unpaid allowance and its delay damages by re-calculated the overtime allowance and night work allowance based on the aforementioned calculation after including bonuses and summer leave expenses for the above period in ordinary wages.

3. Determination

(a) Wages included in ordinary wages;

The Labor Standards Act provides the criteria for calculating premium pay for overtime, night, and holiday work, pre-paid allowance for dismissal, annual leave allowance, etc., and the minimum amount of average wage, means money and other valuables agreed to be paid periodically, uniformly, and fixedly to the block of contractual work (total work in the case of contract workers) ordinarily provided during the prescribed hours, which are the money and other valuables paid periodically, uniformly, and fixedly. Wages paid for a period exceeding one month may be included in ordinary wage if it is regularly, uniformly, and regularly paid.

A fixed wage refers to a minimum amount of wages that an employee who has worked on a voluntary day, regardless of the name of the wage, shall be paid annually and definitely for that day even if he/she retires on the next day. As such, if an employee provides contractual work on a voluntary day, whether to be paid as a matter of course, regardless of the fulfillment of additional conditions, or whether the amount of payment is determined in advance, can be deemed fixed. Here, the term “any condition” refers to a condition that is not yet determined at the time of providing labor on an extended day, night, or holiday, which is not yet determined whether or not the employee has been fulfilled at that time, such as having a specific career or having a certain continuous work period, is not interfered with the recognition of fixedness. It is difficult to view that an employee who has worked on the said date to be paid only 20 days prior to such an extended period, regardless of whether the employee had worked on the said date, to be paid at least 10 days prior to such an extended period of time, if the employee fails to provide such labor at that time.

B. The plaintiffs' bonus and the low-level leave expenses

1) As to whether bonuses and low-level leave allowances have the nature of ordinary wages regularly, uniformly and regularly paid, it is not sufficient to recognize them only with the descriptions of Gap evidence Nos. 1 and 7, and there is no other evidence to acknowledge them.

2) Rather, according to the aforementioned quoted evidence and the following facts revealed by the fact of recognition, it is difficult to view that E’s bonus and the lower-level leave bonus paid to the Plaintiffs pursuant to the instant collective agreement as wages paid to workers employed on the payment date regardless of whether or not workers provided labor, and it is difficult to view it as having the nature of remuneration for contractual work, and it is unclear whether or not the payment conditions are met at the time of providing overtime, night, or holiday work on the voluntary date, and therefore, it is reasonable to deem that there was lack of fixedness required in ordinary wages.

The instant collective agreement provides that "in relation to bonuses, bonuses shall be paid in four installments each quarter, respectively, and as such, E did not pay bonuses to those retired before the above payment date, and the trade union or workers did not raise any special objection. [In the first instance court to the effect that the Defendant asserted that "in the case of temporary retirement due to personal reasons, the Plaintiff paid a bonus on a daily basis after deducting the number of days of temporary retirement from the number of days after deducting the number of days of temporary retirement." However, the above argument by the Defendant is merely the meaning that "in the case of a worker working at the first instance court to pay bonuses, the bonus was paid only when the worker is working at the same time, but it is difficult to deem that the bonus was paid after deducting the number of days of temporary retirement from the number of days of temporary retirement from the date of the above regular working conditions."

B. The collective agreement of this case explicitly stated that "the company shall pay .... B during the 7th month of the lower-level leave to its members", and in particular, in the collective agreement of 2010, 'the lower-level leave does not include the ordinary wage.' Accordingly, E did not pay the lower-level leave expenses to workers who hold the trade union members on March, June, September, September, and December each 15th of the year, and did not pay the lower-level leave expenses to those who retire before the due date, and the trade union or workers did not raise any special objection.

3) Therefore, the above plaintiffs' assertion that the defendant is obligated to pay overtime work allowances and night work allowances to the defendant on the premise that the above bonus and summer leave expenses constitute ordinary wages is without merit.

3. Conclusion

Therefore, the plaintiffs' claims of this case shall be dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance is just, and the plaintiffs' appeals are dismissed in its entirety due to the lack of grounds, and it is so decided as per Disposition.

Judges

Article 5 (Presiding Judge)

Freeboard Kim

The grandchildren Hospital; and

Note tin

1) Article 74 of the collective agreement of 2012 provides that bonuses shall be counted in the total wages by salary class and paid monthly (Provided, That the foregoing shall not apply to bonuses.

The fourth quarter bonus from September 1, 2012 to November 1, 2012 shall apply, and the quarterly bonus from September 1, 2012 to November 201 in which the period has occurred shall be paid until December 15, 2012.

C."No later than November 30, 2012, the foregoing provision is appropriate in the instant case seeking payment of a shortage of wages until November 30, 2012.

shall not be used.

Site of separate sheet

Attached Table 1

List of Plaintiffs

1. C1

Gacheon-si, Dongcheon-dong

2. C2

Gyeong-si, Yanbuk-si

3. C3

Yecheon-si Yecheon-si

4. C4

Yeong-si Yeong-dong

5. C5

Dong-dong, Dong-dong, Si

6. Kim tin;

Hak-si, Hak-si

7. C7

Gyeong-si, Gyeong-dong

8. C8

Yeong-si Yeong-dong

9. C9

racing-si, Dongcheon-ro

10. C10

Yeong-si Yeong-dong

11. Cal;

Yeong-si Yeong-dong

12. C12

Yecheon-si Yecheon-si

k. C13

Young-si, Seok-si

14. C14

Gyeong-si, Gyeong-si

15. C15

Bicycle-si Fluorro

16. The outline fixed number;

Gacheon-si, Dongcheon-dong

k. C17

Hak-si Hak-dong

k. C18

Gacheon-si, Dongcheon-dong

e. C19

Gyeonggi-si, Gu administration

20. C20

Masung-si Gak-dong

21. C21

Gyeong-si, Gyeong-si

22. C22

Gacheon-si, Dongcheon-dong

23. C23

Gacheon-si, Dongcheon-dong

24. C24

Gyeong-dong, Gyeong-si

25. C25

Hak-si Hak-dong

26. C26

Gyeong-si, Gyeong-si

27. C27

Yecheon-si Yecheon-si

28. C28

Gyeong-si, Gyeong-si

29. C29

racing-si Dong-dong, Dong-dong

30. C30

Madong-dong, si-dong

31. C31

Yeong-si Yeong-dong

32. C32

Yeong-si Yeong-dong

3. C3

Hak-si Hak-dong

34. C34

Gacheon-si, Dongcheon-dong

35. C35

Gacheon-si, Dongcheon-dong

36. C36

Hak-si, Hak-si

c7. C37

Gyeong-si, Gyeong-dong

c8. C38

Hak-si Hak-si Hakk-si

39. C39

Hak-si Hak-dong

40. C40

Gacheon-si, Dongcheon-dong

41. C41

North Korea-Si Pohang-si

42. C42

Gacheon-si, Dongcheon-dong

43. C43

Hak-si, Hak-dong

44. C44

Seocho-si, Gyeong-dong

d. C45

Gyeong-si, Gyeong-si

46. C46

Gacheon-si, Dongcheon-dong

47. C47

Gacheon-si, Dongcheon-dong

48. C48

Yecheon-si Yecheon-si

49. C49)

Gacheon-si, Dongcheon-dong

50. C50

1. 1stm for the racing

51. C51

Hak-si Hak-dong

52. C52

Hak-si, Hak-dong

53. C53

Gyeong-si, Gyeong-dong

54. C54

Gacheon-si, Dongcheon-dong

5. C55

Republic of Korea, Gyeong-si

56. C56

Yelenam-si, Yelnam-dong

57. C57

Hak-si Hak-dong

58. C58

Yecheon-si Yecheon-si

59. C59

Hak-si, Hak-dong

60. C60

Hak-si Hak-dong

61. C61

Hak-si Hak-dong

62. C62

Gyeong-dong, Gyeong-si

63. C63

Yecheon-si Yecheon-si

64. C64

Masung-si Gak-dong

65. C65

Yeong-si Yeong-dong

6. C66

Gyeong-si, Gyeong-dong

67. C67

Mag-si, Nam-gu

68. C68

Yeong-si Yeong-dong

69. C69

Masung-si Gak-dong

70. C70

Gyeong-si, Gyeong-si

71. C71

Yecheon-si Yecheon-si

72. C72

Bicycle-si Nowon-dong

73. C73

Gyeong-si, Gyeong-si

74. C74

Yeong-si Yeong-dong

75. C75

Gacheon-si, Dongcheon-dong

76. C76

Yeong-si Yeong-dong

7. C77

Seocho-si Document

g. C78

Hak-si, Hak-si

79. C79

Gacheon-si, Dongcheon-dong

80. C80

Gacheon-si, Dongcheon-dong

81. C81

Yecheon-si Yecheon-si

82. C82

Yeong-si Yeong-dong

83. C83)

Hak-si, Hak-dong

84. C84

Gyeong-si, Gyeong-dong

85. C85

Masung-si Gak-dong

86. C86

Seocho-si Document

87. C87

Gyeong-si, Gyeong-si

8. C88

Gyeong-si, Gyeong-dong

d. C89

Madong-dong, si-dong

90. C90

Republic of Korea, Gyeong-si

d. 191 C91

The end of the racing-si.

Attached Table 2

The calculation table of the unpaid amount of overtime and night work allowances

(unit: won)

A person shall be appointed.

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