2010Na3601 Wages

100 (хххXXх-ххXXXXX)

Gwangju Northern Northern OOO0 OO apartment-Dong-ho

Attorney Park Jae-do, Counsel for the defendant-appellant

044Multiple Limited Liability Company

Gwangju Western OOdong

- Representative Director / - Administrative Agency

Attorney Yang Sung-hee, Counsel for the defendant-appellant

Gwangju District Court Decision 2008Gadan86152 Decided February 17, 2010

October 28, 2010

November 18, 2010

1. The plaintiff's appeal and the claim extended in the trial are dismissed, respectively.

2. The costs of appeal and the costs of lawsuit arising from the extension of claims in the trial are assessed against the Plaintiff.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 14,085,980 won and the amount calculated by applying a rate of 20% per annum to the day after the delivery date of the instant lawsuit to the day of complete payment (the extension of the claim was made in the trial. Meanwhile, the plaintiff sought a reimbursement of KRW 8,255,038 in the court of first instance, which is primarily and conjunctively sought the above purport of the claim, but it is reasonable that this is included in the above purport of the claim, and it is not compatible with the above purport of the claim, and thus it is not deemed that a separate conjunctive claim exists).

1. Basic facts

The following facts may be admitted, either in dispute between the parties or in full view of the respective descriptions of the evidence of Category B 1, 3, and 8 (including each number; hereinafter the same shall apply) and the whole purport of the pleading:

A. The plaintiff worked for the defendant company from March 1, 1987 and retired on April 25, 2008.

B. On January 3, 2007, upon the Plaintiff’s application, the Defendant carried out interim accounts of retirement allowances (hereinafter “Intermediate accounts”) and the contents thereof are as follows.

(1) Interim settlement period: total of 7,180 days from March 1, 1987 to October 31, 2006

(2) Retirement allowance to be received by the Plaintiff: 43,342,020 won [=73,444 won (average wage per day = average wage per day)

As of October 31, 2006, the sum of wages and bonuses for the three immediately preceding months shall be 6,756,932 won/

92 days) ¡¿ 30 days ¡¿ 7,180 days (total number of working days) / 365 days)

(3) Time of payment: Payment made in installments two times in the first and second half of the year in four years after three years of withholding.

C. The Plaintiff received 40,02,630 won (on the actual basis, 2,260,80 won for retirement conversion; 962,360 won for retirement conversion; 96,230 won for income tax; and 40,022,630 won for resident tax, which deducted 3,319,390 won for retirement; and 40,406 won for October 348, 2008 (from November 1, 2006 to December 20, 206, which is the day before the retirement pension subscription date); 3,652,645 won for retirement pension on October 8, 2008 (from December 21, 2006, to December 20, 2006), and received 3,745 won for retirement benefits from October 21, 2008 to April 37, 2008).

2. The allegations by the parties and the determination thereof

A. Summary of the original and the defendant's assertion

The Plaintiff asserts that the interim settlement of the instant case is based on the agreement on August 31, 2006, which was null and void in violation of Article 34 of the Labor Standards Act, Article 8(2) of the Act on the Guarantee of Workers' Retirement Benefits, and Article 19 of the Labor Standards Act, and the wage agreements thereunder, which were null and void. The Defendant’s unilateral coercion or false indication or false representation of the amount of retirement allowances, or that interim settlement of retirement allowances was made for four years after three years was deferred, is null and void as it violates the provisions on the payment of retirement allowances under the Act on the Guarantee of Workers’ Retirement Benefits, and thus, even if the interim settlement of accounts in the instant case is valid, the average wage shall be calculated as of April 25, 2008, on the basis of three months prior to the date of actual retirement, as of 14,085,980 won not paid to the Plaintiff (i.e., the amount of retirement allowances to be paid to the Plaintiff from March 1, 1987 to April 25, 20086.

As to this, the defendant asserts that the interim settlement of this case is effective as it is by agreement between the plaintiff and the defendant, and that the average wage calculation base date is valid as it is by agreement as mentioned above. Accordingly, the defendant asserts that the plaintiff cannot respond to the plaintiff's claim, since he paid the total amount of the retirement allowance including the interim settlement of 43,342,020 won, calculated accordingly.

B. Determination

(1) Whether this case’s interim settlement is invalid

(A) Whether the interim settlement in this case is null and void in accordance with the validity of the agreement, etc. on August 31, 2006

However, according to the evidence evidence evidence Nos. 5 through 7 and No. 3, the defendant company and its labor union prepared an agreement to implement interim settlement as of August 31, 2006 of the same year, and entered into an wage agreement. The above agreement provides that "in principle, interim settlement of retirement allowances" shall apply to the average wage for the three-month period prior to wage, but the applicable date and method of payment shall be separately determined by each labor-management council." The former male Regional Labor Relations Commission decided that the above provision violated Article 34 of the Labor Standards Act, Article 8 (2) of the Guarantee of Workers' Retirement Benefits Act, and Article 19 of the Labor Standards Act, and that the above agreement violates the above interim settlement of retirement allowances and the contents of the wage agreement as of August 31, 2006, and that interim settlement of retirement allowances shall be null and void as of February 1, 2007, regardless of the plaintiff's assertion that interim settlement of retirement allowances and the contents of the above interim settlement of wages shall be null and void.

(B) Whether there was coercion, false indication or false conspiracy

However, it is insufficient to recognize that the plaintiff applied for interim settlement of retirement pay to the defendant around January 3, 2007, on the basis of the part of Gap evidence No. 8, Gap evidence No. 9, and evidence No. 10, the plaintiff's request for interim settlement of retirement pay was made by the defendant's unilateral coercion, or was made by the non-competitive indication or false conspiracy with the defendant, and there is no other evidence to acknowledge it.

오히려, 을 제1 내지 5, 9 내지 11호증의 각 기재에 변론 전체의 취지를 종합하 면, 광주광역시는 2006년경 시내버스 회사의 만성적인 적자, 운전기사들에 대한 임금 및 퇴직금 체불 등의 문제를 해결하기 위하여 시내버스 준공영제를 도입하기로 하였 고 , 이에 따른 재정적 부담을 줄이는 동시에 준공영제에 따른 퇴직연금제를 실시하기 위한 전제로서 광주광역시 내 시내버스 회사와 노동조합 사이에 퇴직금 중간정산을 실 시할 것을 권고한 사실, 당시 광주광역시 내 시내버스 회사들은 심각한 재정난으로 상 당기간 임금이 체불되고 있었는데, 광주광역시의 권고에 따라 준공영제가 시행되면 운 전기사들의 임금이 약 15% 인상이 가능하고 임금체불문제도 개선될 것이라고 기대되 었던 사실, 이에 피고 회사와 그 노동조합은 광주광역시의 권고를 받아들여 2006. 10. 31. 기준으로 중간정산을 실시하기로 하는 단체협약을 체결하였고, 원고 역시 준공영제 실시에 따른 위와 같은 효과가 자신에게 이익이 된다고 판단하여 피고에게 퇴직금 중 간정산을 신청하면서 그 신청서에 스스로 서명 · 날인한 사실, 당시 광주광역시를 운행 하는 시내버스 운전기사들 중 유한회사 ♤♤♤ 소속 ♤☆☆ 23명 , & & & & 주식회 사 소속 ♤☆☆ 5명, 800000 합자회사 소속 ♤☆☆ 93명, ①♣♣♣ 유한회사 요 ☆☆ 9명, 유한회사 □△△△△△ 소속 ♤☆☆ 6명 등은 본인의 의사에 따라 퇴직금 중간정산 신청을 하지 아니한 사실을 인정할 수 있고 , 위 인정사실에 의하면 원고는 자유로운 의사에 따라 피고 회사에게 퇴직금 중간정산신청을 한 것으로 보이므로, 원 고의 이 부분 주장도 이유 없다.

(C) Whether the retirement allowance payment rules are violated

According to Article 9 of the Guarantee of Workers' Retirement Benefits Act, an employer shall pay retirement allowances, etc. within 14 days from the time when the reason for the payment occurred if an employee retires, but if there are special circumstances, the date may be extended by mutual agreement between the parties. As seen above, the Plaintiff agreed to receive interim retirement allowances after three years in consideration of the Defendant's difficult management situation. Thus, the interim settlement in this case is difficult to be deemed null and void in violation of the above provision (Article 36 (5) of the Rules of Employment (Evidence No. 11) of the Rules of Employment (Evidence No. 11) of the Defendant, which provides that the payment period may be extended within three months if there is an agreement between the parties due to special reasons, but the Addenda provides that "from September 1, 2008, which is after the above agreement, the above agreement shall not be deemed null and void). Therefore, the Plaintiff's assertion on this part is without merit.

(2) Whether the base date for calculating average wages should be based on the Plaintiff’s retirement date or the date of application for interim settlement.

However, under Article 2 (1) 6 of the Labor Standards Act, the average wage shall be calculated for three months before the date on which the cause for the interim settlement of the retirement allowance arises. Thus, the standard date for interim settlement of the retirement allowance shall be the date on which the cause for the interim settlement of the retirement allowance arises, barring any special circumstance. However, as seen earlier, the interim settlement of the case is implemented to reduce the financial burden of the city bus when it is intended to introduce the system for the completion of construction of the retirement allowance to solve the problem of wages and retirement allowances for the chronic deficit of the city bus company and drivers, and the circumstance acknowledged by the aforementioned evidence, i.e., the number of delayed payment of the driver's wages after the implementation of the system for completion of construction, increased by about 15%, and the Plaintiff also appears to have received the above interim settlement of the average wage at the time of completion of construction and implementation of the system, and thus, it shall be deemed that the above interim settlement of the retirement allowance at the time of interim settlement of the retirement allowance at issue was not implemented under the agreement or settlement of the above 10th of the average wage.

(3) Whether the average wage calculated on October 31, 2006 by the defendant is appropriate or not.

As of October 31, 2006, the Plaintiff’s average wage calculated by the Defendant as of October 31, 2006 (average wage of KRW 73,444 per day = 6,756,932 won in total as of October 31, 2006, as of October 31, 2006.

92 days) The purport is that the average wage should be calculated by reflecting the increase in wages and bonuses, annual allowance, Kim heading allowance, food expenses, driver's insurance premium not being included in the total amount of wages, so it is unfair that the average wage should be calculated.

First, with respect to wage and bonus increase and Kim funeral subsidy, since the time when the Plaintiff’s wage and bonus increase occurred after October 31, 2006, which is the interim settlement base date of this case, this subparagraph cannot be reflected in the calculation of average wage. According to the evidence No. 19-2 of the evidence No. 19-2 of this case, it is stipulated that the funeral subsidy of 2006 is paid only to a person who is in office as of November 30 of the same year. Thus, since a cause for payment occurred after the interim settlement base date of this case, this subparagraph cannot be reflected in the calculation of average wage.

Next, according to the health stand, Eul evidence 23-1, 2, and 3 of food expenses and driver's insurance premiums, the defendant can recognize the fact that he paid the money to a restaurant in cases where his employees provide meals in a restaurant. However, there is no other evidence to regard that employee who did not provide meals has paid monthly fixed money under the pretext of food expenses, such as food expenses, etc. In light of the purport of the argument in the statement in Eul evidence 24, it cannot be deemed that the employee provided for the worker's welfare, and it cannot be deemed that he paid the money directly to the insurance company after purchasing the driver's insurance policy as the insured, and even if a part of the insurance premium can be refunded depending on the existence of an accident, it cannot be deemed as the wage as the remuneration for labor, so it cannot be viewed as contrary to the calculation of average wages.

Finally, with respect to annual paid leave allowances, the average wage, which forms the basis for calculating the annual paid leave allowances, refers to the amount calculated by dividing the total amount of wages paid as compensation for the relevant employee during the three-month period prior to the date of retirement by the total number of days in that period. Thus, even though it was possible to receive annual paid leave in the preceding year of the retirement year, even though it was not used, the annual paid leave allowances do not constitute the remuneration for the work in the preceding year of the retirement year, and thus, the annual paid leave allowances are not the remuneration for the work in the preceding year of the retirement year. Thus, if a part of the year of the retirement which forms the basis for the annual paid leave allowances is included within the three-month period prior to the date of retirement, the annual paid leave allowances falling under the relevant part are included in the total amount of wages which forms the basis for calculating the average wage (see Supreme Court Decision 95Da32631, Dec. 23, 196). Furthermore, in cases of an application for annual paid leave allowances, it should be included in the average wage calculated within three months prior to that date.

However, from October 31, 2006, the base date for calculating the average wage of the interim settlement of this case, the base date for calculating the amount of annual paid leave rights is far away from the base point of time of occurrence of annual paid leave rights (the pertinent date of each year’s entry, i.e., March 1 of each year), and for at least three months, and there is no relationship between the annual paid leave allowances and the amount of annual paid leave allowances provided during the three-month period before retirement. Therefore, this cannot be included in the total amount

Ultimately, it is justifiable that the Defendant’s calculation of the average wage on October 31, 2006, as of October 31, 2006, did not reflect the same content as the Defendant alleged in its total wage.

C. Therefore, as seen earlier, the interim settlement of this case is valid, and accordingly, the plaintiff received the retirement allowance from the beneficiary. Thus, the plaintiff's aforementioned assertion on a different premise is without merit.

3. Conclusion

Therefore, all of the plaintiff's claims of this case shall be dismissed as it is without merit, and the judgment of the court of first instance which rejected the plaintiff's claims prior to the extension is justified as it is in conclusion, so the plaintiff's appeal and the claim extended to the court of first instance shall be dismissed, and it is so decided as per Disposition.

Park Byung-il (Presiding Judge)

Delay Kim

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