Attached 1 List of Plaintiffs (Law Firm Woo, Attorneys Kim Young-young, Counsel for the plaintiff-appellant)

Gangwonland Co., Ltd. (Law Firm Barun, Attorneys Kim Jae-hyung, Counsel for defendant-appellant)

April 22, 2016

Seoul Central District Court Decision 2015Kahap524508 Decided December 15, 2015

1. All appeals by the plaintiffs and the defendant are dismissed.

2. The appeal cost between the plaintiffs and the defendant except for plaintiffs 67, 69, 73, 90, 91, and 92 shall be borne by the remaining plaintiffs, and the appeal cost between the plaintiffs 67, 69, 73, 90, 91, and 92 shall be borne by the respective parties.

1. Purport of claim

The defendant shall pay to the plaintiffs 6% interest per annum from January 1, 2012 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment with respect to the amount as stated in the attached Table 2’s “Unpaid retirement allowance” column.

2. Purport of appeal

A. The plaintiffs

Of the judgment of the first instance, the part against the plaintiffs falling under the order to pay is revoked. The defendant shall pay to the plaintiffs 6% interest per annum from January 1, 2012 to the service date of a duplicate of the complaint of this case from the next day to the day of full payment, and 15% interest per annum from the next day to the day of full payment (the plaintiff 90, 91, and 92 all are excluded from the principal part wholly cited in the judgment of the first instance, and only the part against the above plaintiffs from the delay damages).

B. Defendant

Of the judgment of the first instance, the part against the defendant against the plaintiffs 67, 69, 73, 90, 91, and 92 shall be revoked, and the above plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Basic facts

A. The defendant is a legal entity that runs a casino business, and the plaintiffs are the defendant's employees.

B. On December 31, 201, the Plaintiffs received retirement allowances calculated according to the interim settlement of accounts between the Defendant and the retirement allowances.

C. In calculating the retirement allowance as above, the Defendant calculated the retirement allowance without including part of the annual bonus out of the family allowance and special bonus (hereinafter “instant bonus”) that the Defendant paid every month (in case of 2011, 350% of the annual bonus (basic pay + 300,000 won), among which 200% was paid, and the remainder was not included) as the average wage.

D. Of the Defendant’s wage rules and the wage rules enforcement rules, the contents of the instant case are as follows.

(2) The definitions of terms used in this Article shall be as follows. The term "wages" means basic salary, allowances, bonuses, and retirement allowances. The term "average wages" means the amount of additional salary paid according to the conditions of duties, life, etc. during the 2-month period, calculated by dividing the amount of monthly salary by the total number of calendar days during the 3-month period. The term "average wages" means the amount calculated by dividing the amount of salaries and other allowances paid under the 2-month period from the 2-month period to the 3-month period to the 1-month period to the 2-month period to the 3-month period to the 2-month period to the 1-month period to the 2-month period to the 2-month period to the 3-month period to the 1-month period to the 2-month period to the 2-month period to the 1-month period to the 3-month period to the 2-month period to the 1-month period to the 2-month period to the 2-month average wages:

Note 1) 270,000 won

Note 2) 270,000 won

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 3, Eul evidence 10 and 11 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Family allowances correspond to benefits as “the allowances” and are included in all money and valuables paid in any name, and thus constitutes average wages. The Defendant’s wage rules include bonuses as the average wage, which constitutes a special bonus, and thus constitutes the average wage. However, the Defendant calculated the Plaintiffs’ retirement allowances instead of including part of the annual bonuses as the average wage.

Therefore, the defendant is obligated to pay to the plaintiffs family allowances and special bonuses for delay from January 1, 2012, which is the day after receiving interim settlement of the difference between the retirement allowances received by the plaintiffs, in the retirement allowances calculated by including part of annual bonuses as average wages.

B. Defendant’s assertion

(1) The Defendant, even though family allowances are included in “the average wage”, was a practice that does not include them in the average wage. Therefore, the family allowances are not included in the average wage.

D. The bonus of this case is changed annually according to the result of labor-management negotiations, and the amount paid also may be determined by the board of directors of the defendant based on the agreement between the labor and management, and the payment rate may vary depending on the class, evaluation, etc. of the employee concerned, and the decision whether to pay the bonus of this case shall also be made in consideration of the company's business performance. Accordingly, the bonus of this case cannot be deemed as wages which

Secondly, even if family allowances or the bonus of this case are included in average wages, the amount of retirement allowances paid by the defendant to the plaintiffs shall meet the minimum standards prescribed by relevant Acts and subordinate statutes, including the Labor Standards Act, except for some plaintiffs. Thus, the defendant is not obliged to pay additional retirement allowances to the plaintiffs who meet the minimum standards.

3. Determination

(a) Whether family allowances are included in the average wage;

(1) The term “wages as the basis for the calculation of average wages” refers to money and valuables that an employer pays to an employee as remuneration for work and that the employer is obligated to pay to the employee in accordance with collective agreements, rules of employment, wage rules, employment contracts, labor contracts, labor practices, etc. (see, e.g., Supreme Court Decisions 2001Da53950, Oct. 23, 2001; 2012Da48077, Apr. 11, 2013).

In addition to the purport of the argument as a whole, family allowances are deleted from the obligation to pay to the defendant in accordance with the payment rules, and accordingly a certain amount has been paid continuously and regularly. Therefore, family allowances paid by the defendant to the plaintiffs are wages as remuneration for work, and are included in the average wage which is the basis of the calculation of the retirement allowances of the plaintiffs.

【Familyly, the Defendant argues that, in the case of family allowances paid differently or paid only to some workers according to the number of family members in accordance with the standard example of determination of ordinary wages, average wages, etc., the established rules of the Ministry of Labor, the Defendant should exclude them from the average wage. Although the Defendant calculated retirement allowances by excluding family allowances, there was no objection raised by the Defendant’s employees against them, and thus, the practice of excluding family allowances was established

However, in light of the fact that the Defendant’s benefit provision includes the amount of the average wage including the various allowances, such as the family allowances, and that there is no evidence to deem that the Defendant’s employee was aware that he was excluded from the family allowances according to the existence of the above guidelines, it is difficult to view that the Defendant’s assertion and the evidence submitted by the Defendant alone constituted a practice to exclude the family allowances from the average wage

Therefore, the defendant's above assertion is without merit.

B. Whether the bonus in this case is included in the average wage

(i) Relevant legal principles

Average wages, which are the basis for the calculation of retirement allowances, are all money and valuables paid by an employer to an employee as compensation for work, including all names, regardless of whether the cause for payment has occurred, and are uncertain and temporarily paid to an employee under the collective agreement or rules of employment, etc. On the other hand, in determining whether certain money and valuables have been paid as compensation for work, the occurrence of the obligation to pay money and valuables must be deemed directly related to the provision of work or closely related thereto, and in cases where the occurrence of the obligation to pay money and valuables depends on the special and incidental circumstances of an individual employee, it shall not be deemed that the payment was made as compensation for work (see Supreme Court Decisions 200Da18127, May 31, 2002; 2009Da86246, Oct. 13, 2011; 201Da23149, Jul. 14, 2011).

In a certain workplace’s wage provision, whether a special bonus is included in the wages which are the basis for the calculation of retirement allowances is based on the objective interpretation of the above provisions, and the interpretation should take into account various circumstances such as payment practices based on the above provisions and the amendment process and contents of the above provisions (see Supreme Court Decision 9Da71276 delivered on March 27, 2001).

Doz. Doz.

㈎ 피고의 이 사건 상여금 제도는 다음과 같이 변동되었다.

(2) On or after the 203rd anniversary of the 203rd anniversary of the 203rd anniversary of the 203rd anniversary of the 203rd anniversary of the 10th anniversary of the 201st anniversary of the 204rd anniversary of the 201st anniversary of the 202nd anniversary of the 204rd anniversary of the 202nd anniversary of the 20th anniversary of the 202nd anniversary of the 20th anniversary of the 202nd anniversary of the 20th anniversary of the 20th 2nd anniversary of the 3rd anniversary of the 206th anniversary of the 2nd anniversary of the 202nd anniversary of the 202nd anniversary of the 20th 2nd anniversary of the 20th 2nd anniversary of the 20th 2nd anniversary of the 206th 2nd anniversary of the 206th 20th 206rd of the 206th 2nd agreement.

㈏ 피고와 피고 노동조합 사이의 2011년 단체협약은 이 사건 상여금에 관해 다음과 같이 정하고 있었다.

Article 42 (Reward) (1) Company shall pay a bonus of 600% per annum as follows:

1. 100% of the total amount of the basic salary and 300,000 won on the date of the payment of benefits in January, March, May, July, July, September, September, September, and November shall be paid;

2. The period of calculation of bonuses shall be from the first day of the month following the month in which the immediately preceding bonus is paid until the last day of the month in which the bonus is to be paid; and

(2) A company may pay special bonuses to its members for the performance of business, boosting the morale of its members, etc. as follows: Provided, That the criteria for payment shall be the aggregate of basic salaries and 300,000 won

1. The rate of payment of snow, summer, and tin special bonus shall be 100%.

2. The rate of payment of special bonuses at the end of each year shall be determined through consultation between labor and management;

【Reasons for Recognition】 Each entry in the Evidence Nos. 1 to 10

【Judgment

In light of the following circumstances recognized by adding the purport of the entire pleadings, it is reasonable to view the instant bonus as constituting the basis for the calculation of retirement allowances.

㈎ 피고 급여규정 제3조 7호에서는 ‘평균임금’을 산정하여야 할 사유가 발생한 날 전일부터 3개월간에 지급된 ‘급여 및 기타 여하한 명칭으로 지급하는 일체의 금품’을 그 기간의 총일수로 나눈 금액을 말한다고 정하고 있어 이 사건 상여금을 제외하고 있지 않다.

㈏ 피고 급여규정 및 2011년 단체협약에서는 ‘회사는 경영성과, 조합원의 사기진작 등을 위하여 특별상여금을 지급할 수 있다.’라는 취지의 규정을 두어 그 지급 여부를 회사가 임의로 정할 수 있는 것으로 정하고 있다. 그러나 피고의 직원들에 대한 이 사건 상여금은 2003년부터 2011년까지 상당 기간 예외 없이 지급되었으며, 그 지급률에 차이는 있었으나 연말 무렵에 계속 지급되었다(2008년에도 연말성과급 250%는 2008. 12. 26.경에 지급되었다). 이에 비추어 볼 때, 피고는 이 사건 상여금의 지급을 충분히 예상할 수 있었고 피고의 직원들에게도 위 상여금이 지급될 것이라는 기대가 형성되었다고 볼 수 있다.

㈐ 피고는 이 사건 상여금의 지급이 회사의 경영성과에 따른 일종의 경영성과 분배금이므로 근로의 대상으로 지급된 것이 아니라고 주장한다. 그러나 이 사건 상여금의 지급률이 매년 증가해 왔다는 사정만으로 그 산정이 경영성과에 따른 것이라고 보기 어렵다. 오히려 매년 노동조합과의 임금협약과 함께 이 사건 상여금의 지급률을 정해온 사정에 비추어 근로제공과 밀접하게 관련된 것이라고 보이고, 이 사건 상여금이 달리 은혜적 금품에 불과하거나 근로자의 특수하고 우연한 사정에 의해 좌우되는 우발적·일시적 급여라고 볼 만한 다른 근거가 없다.

C. Whether the Defendant’s payment of retirement allowances falls short of relevant statutes, such as the Labor Standards Act

(1) Article 34 of the Labor Standards Act provides, “The retirement benefit scheme that an employer pays to a retired employee shall be governed by the Act on the Guarantee of Workers’ Retirement Benefits.” Article 8(1) of the Act on the Guarantee of Workers’ Retirement Benefits provides, “An employer who intends to establish a retirement allowance system shall establish a system that makes it possible to pay an employee who retires with an average wage of at least 30 days for one year of his/her continuous service.” This provision provides, “Where an employer calculates an average wage for the calculation of an employee’s retirement allowance, contrary to the above provision of the Labor Standards Act, even if the company calculates an average wage by excluding a part of the wages as a result of the calculation of an average wage for the calculation of an employee’s retirement allowance, it does not constitute an unlawful act of paying the retirement allowance of the said company if the lower limit limit under the above provision of the Labor Standards Act is set as a result of the adoption of the retirement allowance rate set by the company under the above Act (see Supreme Court Decision 91Da32657, Dec. 13, 1994).

In addition, Article 15(1) of the Labor Standards Act provides that “a labor contract that prescribes working conditions that fall short of the standards prescribed by this Act shall be null and void only in its part.” Paragraph (2) of the same Article provides that “The part null and void pursuant to paragraph (1) shall be in accordance with the standards prescribed by this Act.” Even if a company excluded an allowance to be included in the average wage under the Guarantee of Workers’ Retirement Benefits Act, it shall not be entirely null and void, but shall be null and void only for the part that includes working conditions that fall short of the standards

According to the written evidence No. 1, it is recognized that the defendant and the defendant's trade union entered into an agreement on the abolition of the retirement benefits progressive system from December 31, 2009 on the method of calculating retirement allowances and converting the retirement benefits into a single system. According to this, the plaintiffs have been subject to the progressive system more favorable than the one under the Guarantee of Workers' Retirement Benefits Act prior to December 31, 2009.

Therefore, even if the Defendant’s family allowance and the instant bonus were excluded from the average wage, if the amount of retirement allowances received by the Plaintiffs is not less than the amount guaranteed by the Labor Standards Act and the Guarantee of Workers’ Retirement Benefits Act, it cannot be deemed unlawful. The amount of retirement allowances paid by the Plaintiffs is identical to the amount of interim settlement of accounts for the attached Table 3 (involuntary payment), and there is no dispute as to the fact that the amount of retirement allowances that the Plaintiffs are entitled to receive under the Labor Standards Act and the Guarantee of Workers’ Retirement Benefits Act is equal to the amount of interim settlement of accounts for the attached Table 3 (short payment). Therefore, there is no other claim filed by the Plaintiffs other than Plaintiffs 67, 69, 69, 73, 90, 91, and 92, and the Defendant’s claim against the Plaintiffs 67, 69, 73, 90, 91, and 92 is invalid within the extent set forth by the Labor Standards Act, and thus, the amount of retirement allowances paid by the Plaintiffs to the Plaintiffs 2, 3050, 290, 290 and 250.

Referencely, the plaintiffs asserted that, even though there was no agreement between the plaintiffs and the defendant to exclude family allowances and the bonus in this case from the average wage, the defendant arbitrarily excluded the above allowances from the average wage, and that, unless there was an agreement between the workers and the company on the exclusion of some wages from the average wage, the retirement allowance calculated by the company excluding some wages from the average wage cannot be deemed valid merely because the retirement allowance calculated by the company exceeds the standard prescribed in the Guarantee of Workers

However, the legislative purport of the Labor Standards Act, such as the Guarantee of Workers' Retirement Benefits Act, is to ensure and improve the basic life of workers, including stable livelihood in their old age, and to ensure the balanced development of the national economy. Therefore, if an employer satisfies the criteria prescribed by the relevant Act and subordinate statutes, the working conditions can be determined in full in the direction that may benefit all the company and workers, taking into account the specific company structure and in-house environment, and the employer’s disposition is not prohibited under the Labor Standards Act, regardless of whether the agreement was reached or not, if the retirement allowances calculated in accordance with the Defendant’s wage regulations do not fall short of the lowest prescribed by the Labor Standards Act, etc., the act cannot be deemed unlawful and null and void (the Plaintiff asserted that, according to the Defendant’s wage regulations, it was unlawful to include family allowances in the average wage, etc., but it is difficult to view that the Plaintiff’s calculation of retirement allowances excluding part of the average wage against the above wage provision, based on the written evidence No. 2.

Therefore, the plaintiffs' above assertion is without merit.

D. Sub-determination

Therefore, the Defendant is obligated to pay the amount of money recognized as above to Plaintiffs 67, 69, 73, 90, 91, and 92, and damages for delay calculated at the rate of 15% per annum under the Commercial Act until December 15, 2015, which is the date of the first instance judgment, and the date of full payment from the next day to the date of full payment, as calculated by the rate of 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from January 15, 2012, which is the day following the expiration of 14th day from the date of the interim settlement of the above Plaintiffs with respect to each of the above amounts (see Article 37 of the Labor Standards Act).

4. Conclusion

Therefore, the claims of plaintiffs 67, 69, 73, 90, 91, and 92 shall be accepted within the scope of the above recognition, and each of the remaining claims shall be dismissed as without merit, and the remaining claims of the plaintiffs shall be dismissed as they are without merit. Since the judgment of the court of first instance is just in conclusion, all appeals filed by the plaintiffs and the defendant shall be dismissed. It is so decided as per Disposition by the assent of all.

[Attachment Omission]

Judges Lee Jin-hun (Presiding Judge)

Note 1) The wage rules that applied retroactively from January 1, 2011 changed to KRW 300,000 pursuant to a collective agreement.

Note 2) The wage rules that applied retroactively from January 1, 2011 changed to KRW 300,000 pursuant to a collective agreement.