[1] Requirements to determine which wage constitutes a "ordinary wage"

[2] The method of determining whether the “average wage”, which serves as the basis for the calculation of a retirement allowance under the rules of employment or collective agreement at a certain workplace, constitutes an average wage under the Labor Standards Act or includes

[3] In a case where the term “average wages” used by a local government as a basis for the calculation of retirement allowances by concluding a collective agreement with the labor union to which Party B et al. belong constitutes average wages as stipulated in the Labor Standards Act, etc., the case holding that the above collective agreement and wage agreement should be interpreted to mean only the average amount of wages agreed to be paid to Party B et al. by calculating various allowances according to the ordinary wages limited to the Labor Standards Act, not the average wages stipulated in the Labor Standards Act or the Guarantee of Workers’ Retirement Benefits Act, in light of all circumstances, but it is reasonable

[1] Article 2 of the Labor Standards Act/ [2] Article 2 of the Labor Standards Act/ [3] Article 2 of the Labor Standards Act

[1] Supreme Court Decision 2006Da13070 Decided June 15, 2007, Supreme Court Decision 2009Da74144 Decided January 28, 2010 / [2] Supreme Court Decision 97Da25095 Decided March 13, 1998 (Gong198Sang, 1015), Supreme Court Decision 2003Da27429 Decided March 11, 2005 (Gong2005Sang, 570)

Plaintiff 1 and nine others (Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Seo-gu, Daejeon Metropolitan City (Law Firm Han field, Attorneys Kang Byung-jin et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2010Na24 decided July 7, 2010

The part of the judgment below against the plaintiff 2, 3, 4, 5, 6, 8, and 10's retirement allowance claim is reversed, and that part of the case is remanded to the Daejeon High Court. The remaining grounds of appeal are dismissed. The costs of appeal against the plaintiff 1, 7, and 9 are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal on the delayed payment of legal allowances

If a certain wage constitutes ordinary wage, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wage, it does not constitute ordinary wage if a certain wage constitutes ordinary wage, which is not a fixed wage, such as whether it is regularly or uniformly paid, or whether it is paid or the amount of payment varies depending on the actual work performance. Here, the term “a uniform payment” includes not only the payment to all workers, but also the payment to all workers who meet the certain conditions or standards. The term “fixed conditions” in this context refers to “fixed conditions” in light of the concept of ordinary wage that seeks to calculate “regular and average wages” (see, e.g., Supreme Court Decisions 2006Da13070, Jun. 15, 2007; 2004Da41479, Oct. 28, 2010).

According to the reasoning of the lower judgment, the lower court determined that, other than the basic pay, special work allowance, work encouragement allowance, and household support allowance determined as ordinary wage between the instant trade union and the Defendant, the Defendant’s continuous service additional, fixed wage paid by the Defendant to the Plaintiffs, such as fixed meal allowance, fixed meal allowance, transportation subsidy, wage, sanitation allowance, and pollution allowance, shall also be included in ordinary wage under the Labor Standards Act. Based on such ordinary wage, the lower court accepted the Plaintiffs’ claim on holiday work allowance, annual leave allowance, overtime work allowance, and night work allowance.

In light of the above legal principles and records, such judgment of the court below is just, and there is no error in the misapprehension of legal principles as to ordinary wages as otherwise alleged in the ground of appeal (the part concerning the horse allowance, overtime allowance, physical training expenses, and holiday leave expenses, which are pointed out by the defendant in the ground of appeal, was not claimed by the plaintiffs as to the horse allowance, etc., and the court below did not make any decision thereon).

2. As to the grounds of appeal on retirement allowances in arrears

Whether a “average wage”, which serves as the basis for the calculation of a retirement allowance under the rules of employment or collective agreement at a certain workplace, is an average wage under the Labor Standards Act or any other wage is determined by the objective interpretation of the above provisions. The interpretation of the above provisions ought to take into consideration various circumstances such as the payment practices based on the above provisions and the details and details of the amendment (see, e.g., Supreme Court Decisions 97Da25095, Mar. 13, 1998; 2003Da27429, Mar. 11, 2005).

According to the reasoning of the judgment below, the court below rejected the claim that "the defendant paid retirement allowances on the basis of the wage excluded from part of the allowances to be included in ordinary wages, but the amount of retirement allowances calculated by agreement between the trade union and the defendant exceeds the minimum amount guaranteed by the law, and such agreement shall not be null and void, since such agreement is the amount above the minimum amount guaranteed by the law." The court below acknowledged the following facts as stated in its reasoning: (a) each of the wage agreements entered into between the trade union of this case and the defendant as well as the labor union of this case has a provision on retirement allowances separate from the provision on basic pay and special business allowance; (b) where the provision on retirement allowances does not include any provision on limiting the average wage, the agreement on restriction of ordinary wages is merely related to ordinary wages, and it is difficult to view it as an agreement on restriction of average wage, and there is no other evidence to deem otherwise.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles and the following circumstances.

According to the reasoning of the lower judgment and the record, the Defendant calculated the instant collective agreement with the Ministry of the Interior and Safety (the former Ministry of Government Administration and Home Affairs) from 2005 to 207, regarding the payment of wage for 10 years in addition to the annual average wage payment rate of 9 years from 2005 to 207 (hereinafter “instant collective agreement”). Under the instant collective agreement and the wage agreement incidental thereto, the Defendant used the term “average wage” as the basis for the calculation of retirement allowance, but the instant collective agreement used the term “monthly average wage” as the basis for the calculation of the instant allowances, and the instant collective agreement used the same as the instant annual average wage of 10 years from 2005 to 207, including the annual average wage of 9 years from 10 years from 205 to 30 years from 10 years from 207, as well as the instant average wage of 9 years from 10 years from 10 years from 200 or more from 10 years from 10 years from 20 years from 30 years ago.

Examining each of the above circumstances in light of the legal principles as seen earlier, it is reasonable to interpret that the “average wage” under the instant collective agreement and wage agreement as the basis of the calculation of retirement allowances is not the average wage under the Labor Standards Act or the Guarantee of Workers’ Retirement Benefits Act, but only the average amount of the wages agreed to be paid to the Plaintiffs by calculating various allowances according to the limited ordinary wages compared to

Therefore, it shall be deemed that there was an agreement between the trade union and the defendant to calculate the average wage, which serves as the basis for calculating the amount of retirement allowances, based on the above limited ordinary wage, and if such agreement is acknowledged, if the plaintiffs who received retirement allowances by applying the additional rate (150/100), the amount of retirement allowances calculated pursuant to the collective agreement and wage agreement of this case may be the amount higher than the minimum limit guaranteed by the law. Thus, the court below should have further deliberated on these issues and should have determined the legitimacy of the above plaintiffs' retirement allowance claim.

Nevertheless, the court below rejected the defendant's assertion on the grounds as seen above, and accepted the plaintiff 2, 3, 4, 5, 6, 8, and 10's claim for retirement allowance from the retirement allowance calculated by applying the annual number of years of continuous service and the additional rate (150/100) to the average wage calculated on the basis of ordinary wage, including the additional continuous service charges, etc., as seen above. Thus, the court below erred by misapprehending the legal principles on the interpretation of the collective agreement and wage agreement and the calculation of retirement allowances, which affected the conclusion of the judgment. The defendant's ground of appeal pointing

3. Conclusion

Therefore, among the judgment below, the part of the claim for retirement allowance of Plaintiffs 2, 3, 4, 5, 6, 8, and 10 among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. The costs of appeal against the plaintiffs 1, 7, and 9 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee In-bok (Presiding Justice)