Plaintiff (the deceased non-party 1 of the Supreme Court’s judgment) (Attorney Lee Jong-hoon et al., Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

October 20, 2009

1. The Defendant’s disposition of non-approval of the average wage correction against the Plaintiff on August 6, 2008 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. The Plaintiff is under medical care after receiving diagnosis of pneumoconiosis on December 28, 2006 while working for light stones Co., Ltd. (hereinafter the non-party company) as an employee. In calculating the average wage for the payment of temporary layoff benefits to the Plaintiff, the Defendant calculated the average wage as an average wage on the ground that the 69,242 won calculated in accordance with the special provision for calculating the average wage of a patient with occupational illness under Article 35(5) of the former Industrial Accident Compensation Insurance Act is higher than 193 won calculated in accordance with Article 2 of the Labor Standards Act, and paid temporary layoff benefits after the increase or decrease of average wage each year.

B. On July 4, 2008, the plaintiff asserted that the plaintiff was a daily worker who received 170,000 won per day from the non-party company, and thus, the plaintiff applied for the correction of the average wage by multiplying the above daily amount by 0.73 by the figure of ordinary labor. However, the defendant applied for the correction of the average wage on August 6, 2008 for the following reasons: although the plaintiff was employed in the non-party company as a result of confirmation of related data, working conditions, etc. are similar to the monthly wage system worker engaged in the same kind of work, if the average wage is calculated pursuant to Article 2 of the Labor Standards Act, the average wage calculated pursuant to the special provision on the calculation of the average wage of the non-party with occupational disease under Article 35 (5) of the former Industrial Accident Compensation Insurance Act is 69,242 won and is calculated pursuant to Article 2 of the above Labor Standards Act, it is reasonable to calculate the average wage based on the above correction of the average wage.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was a daily employed worker who was paid 150,000 won as the daily allowance at the time of Nonparty Company’s membership. As such, the Plaintiff’s average wage shall be calculated by multiplying the daily wage by 0.73.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On February 1, 2005, the Plaintiff entered the company of the non-party by determining the amount calculated by multiplying the number of days actually worked by 150,000 won per day ( half in the case of 1/2 day) by the monthly amount, and thereafter served as a stone offer until December 29, 2006.

(2) The Plaintiff received benefits respectively from August 2, 2006 2,025,00 won (150,000 won x 13.5 days) and from September 3, 150,000 won (150,000 won x 21 days) of the same year, and from October 2, 175,000 won (150,000 won x 14.5 days) of the same year, and from November 1, 125,000 won (150,000 won x 7.5 days) of the same year, and from December 1, 2006 x 1,80,000 won (150,000 won x 12 days).

(3) The non-party company shared part of the insurance premiums, national pension premiums, and employment insurance premiums for the non-party 4 and 9 who were employed as a commercial worker during the plaintiff's employment period, but did not bear all the above insurance premiums for the plaintiff, non-party 3 and 2 who were employed as a daily worker. Accordingly, the plaintiff was not registered as a workplace health insurance policyholder of the non-party company during the employment period of the non-party company.

(4) The plaintiff, the non-party 3, and the non-party 2 worked in contact with the non-party company during the above employment period on a daily basis, and accordingly, the number of monthly working days was not fixed.

(5) The Plaintiff was unable to receive retirement allowances on the ground that he was employed as a worker on a daily basis despite the period of service at the time of retirement from the non-party company.

[Ground of recognition] Gap evidence Nos. 2 through 7 (including paper numbers), Eul evidence Nos. 2 through 7, the inquiry result of minor stones Co., Ltd. in this court, and the purport of the whole pleadings

D. Determination

(1) According to the proviso of Article 5 subparagraph 2 of the former Industrial Accident Compensation Insurance Act, Article 35 (4) of the same Act, and Article 25-2 of the Enforcement Decree of the same Act, where the relevant worker is an employee who is employed on a daily basis or who is paid daily wages according to the number of working days (hereinafter “daily”), the amount calculated according to the method of calculation prescribed by the Presidential Decree shall be the average wage unless it falls under a specific exception provision. In accordance with the provision of Article 25-3 of the Enforcement Decree of the same Act, where there is any wage paid to the relevant worker during the month immediately before the date the cause of calculating the average wage occurred, the amount calculated by dividing the total amount of wages paid to the relevant worker during the pertinent month by the number of working days multiplied by the average wage coefficient (Article 1). However, in this case, the Plaintiff’s average wage shall be calculated by dividing the total amount of wages paid to the relevant worker during the pertinent month by the number of working days and then dividing it by the number of working days during the pertinent month by the prescribed number of days under Article 15 of the same Act.

(2) As to this, the Defendant asserts to the effect that it is reasonable to calculate the average wage on the ground that the Plaintiff was employed by the non-party company and was similar to the above non-party company's monthly wage system, but did not work for the same kind of work, by dividing the total wage paid for the three months prior to the date of diagnosis of pneumoconiosis pursuant to Article 2 of the Industrial Accident Compensation Insurance Act, by the number of days during which the period is 19,000 won, but the average wage calculated pursuant to Article 35 (5) of the former Industrial Accident Compensation Insurance Act is 69,242 won, which is calculated pursuant to Article 2 of the above Labor Standards Act, and is higher than 56,953 won, which is calculated pursuant to Article 2 of the above Labor Standards Act. However, in light of the above facts, it is difficult to recognize that the Plaintiff did not work for the non-party company as the number of days employed by the non-party company and the number of days employed by the non-party company during which the Plaintiff was employed by the non-party 2.

(3) Therefore, the Plaintiff’s average wage is unlawful in calculating the amount calculated by dividing the total amount of wages paid during one month prior to the date on which the cause for calculating the average wage occurred by the number of working days during that period (in this case, the Plaintiff was paid monthly wages by multiplying the number of working days by 150,000 won per day. Thus, the amount calculated by dividing the total amount of wages paid during one month prior to the date on which the cause for calculating the average wage occurred by the number of working days during that period shall be the same as the above daily wage) by 0.73. However, on the premise that the working conditions, etc. of other daily workers of Nonparty company are similar to those of ordinary workers engaged in the same kind of work.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

[Attachment Form 5]

Judges Full Order