[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 1 other (Attorney-at-law Kim Se-hui, Yeoneun Law Firm, Counsel for the plaintiffs)
[Plaintiffs, Appellees] Plaintiff 3 and 2 others (Attorney-at-law Kim Se-hui, Yeoneun Law Firm, Counsel for the plaintiffs)
[Defendant, Appellee and Appellant] Wilhelmsen Ship Management Korea Co., Ltd. (Attorney-at-law Park Seong-ha, Dongin Law Firm (LLC), Counsel for the defendant)
[Judgment Below] Seoul High Court Decision 2022Na2027381 decided April 28, 2023
[Order]
The part of the judgment below concerning the losing portions of Plaintiff 1 and Plaintiff 2 is all reversed, and this part of the case is remanded to the Seoul High Court. All of the defendant's appeal is dismissed. Of the costs of the appeal, the portion arising between Plaintiff 3, Plaintiff 4, Plaintiff 5 and the defendant shall be borne by the defendant.
[Reasoning] The grounds of appeal are examined.
1. As to the grounds of appeal by Plaintiff 1 and Plaintiff 2
A. Relevant legal principles
Whether a certain wage falls under ordinary wages must be determined according to its objective nature, based on whether it is money or goods paid to an employee as consideration for prescribed work, and whether it is paid regularly, uniformly, and fixedly. "Consideration for prescribed work" means money or goods that the employer and employee have agreed to pay for the work that the employee has agreed to ordinarily provide during the prescribed working hours. Wages that an employee additionally receives from the employer by providing work in excess of the prescribed working hours, or by specially providing work other than that agreed to be provided under the labor contract, or wages received unrelated to work during the prescribed working hours, cannot be regarded as consideration for prescribed work and therefore do not fall under ordinary wages. What constitutes consideration for prescribed work must be determined comprehensively based on how the employee and employer evaluated the value of the work that the employee agreed to ordinarily provide during the prescribed working hours, and how much money or goods they agreed to pay therefor (see Supreme Court en banc Decision 2012Da89399 decided December 18, 2013; Supreme Court Decision 2020Da224739 decided November 11, 2021).
B. Determination
1) Examining the reasoning of the judgment below in light of the relevant legal principles and the record, the lower court's determination that the "Fixed Overtime Allowance (Onboard Payment)" concerning Plaintiff 1's 3rd voyage and Plaintiff 2's 3rd and 4th voyages does not constitute consideration for prescribed work and thus is not included in ordinary wages, cannot be accepted, for the following reasons.
A) Until December 31, 2018, the defendant paid the plaintiffs a "Fixed Overtime Allowance (Fixed overtime)" pursuant to the previous seafarer employment contracts concluded with the plaintiffs, and separately also paid a "Welfare Allowance," which was paid monthly, converted from US$300 at the exchange rate at the time of payment.
B) From January 1, 2019, pursuant to the new seafarer employment contracts concluded with the plaintiffs, the defendant paid the plaintiffs a "Fixed Overtime Allowance (Home Allowance)/Fixed overtime-Home Allowance," which was merely a renamed version of the previous "Fixed Overtime Allowance (Fixed overtime)." Meanwhile, the previous "Welfare Allowance" was deleted from the wage items, and instead a "Fixed Overtime Allowance (Onboard Payment)/Fixed overtime-Onboard Allowance" was newly created, which, like the previous "Welfare Allowance," was paid monthly, converted from US$300 at the exchange rate at the time of payment.
C) However, in the pay statements concerning Plaintiff 1's 3rd voyage and Plaintiff 2's 3rd and 4th voyages, unlike the new seafarer employment contracts concluded at the time, the item "Fixed Overtime Allowance (Onboard Payment)" was indicated as "Welfare Allowance (FOT)," which means that this is the same item as the previous "Welfare Allowance." Moreover, in the severance pay statements of Plaintiff 1 and Plaintiff 2, the amounts corresponding to the "Fixed Overtime Allowance (Onboard Payment)" for the above voyages were all recorded under the item "Welfare Allowance."
D) The plaintiffs did not assert that the previous "Fixed Overtime Allowance (Fixed overtime)" or the "Fixed Overtime Allowance (Home Allowance)/Fixed overtime-Home Allowance" after January 1, 2019 constituted ordinary wages, and there is no dispute between the plaintiffs and the defendant that the previous "Welfare Allowance" is included in ordinary wages.
E) Around July 2018, employees of the defendant filed a civil lawsuit asserting that the previous "Welfare Allowance" should be included in ordinary wages, and a judgment in their favor on this point was thereafter finalized. There is no evidence to suggest that the plaintiffs' working hours or work patterns changed before and after the change of wage items in the new seafarer employment contracts concluded by the defendant from January 1, 2019.
F) Ultimately, there is substantial room to view that the new seafarer employment contracts concluded between the plaintiffs and the defendant after January 1, 2019 merely changed some wage items formally in comparison with the previous seafarer employment contracts. Therefore, it is reasonable to view that the "Fixed Overtime Allowance (Onboard Payment)" concerning Plaintiff 1's 3rd voyage and Plaintiff 2's 3rd and 4th voyages was, in substance, paid in the same amount and in the same manner of payment as the previous "Welfare Allowance," merely under a different name, and thus constitutes money or goods paid to an employee regularly, uniformly, and fixedly as consideration for prescribed work.
2) Nevertheless, the lower court, for the reasons stated in its judgment alone, determined that the "Fixed Overtime Allowance (Onboard Payment)" concerning Plaintiff 1's 3rd voyage and Plaintiff 2's 3rd and 4th voyages is not included in ordinary wages. Such determination by the lower court contains an error that misapprehended the legal principles concerning whether something constitutes ordinary wages, thereby affecting the conclusion of the judgment.
2. As to the defendant's grounds of appeal
A. First point
The lower court determined, for the reasons stated in its judgment, that the paid leave allowance in this case must be paid at 1.5 times the ordinary wage pursuant to the latter part of Article 49 (2015) or Article 51 (2018) of the defendant's rules of employment.
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the lower court's determination that misapprehended the legal principles concerning the legal nature of paid leave allowance and the interpretation of rules of employment, thereby affecting the conclusion of the judgment.
B. Second point
The lower court determined, for the reasons stated in its judgment, that the "re-employment allowance" paid to Plaintiff 1, Plaintiff 2, Plaintiff 3, and Plaintiff 5 as consideration for prescribed work is recognized as having regularity, uniformity, and fixedness, and thus is included in ordinary wages.
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the lower court's determination that exceeded the bounds of free evaluation of evidence in violation of the rules of logic and experience, or that misapprehended the legal principles concerning ordinary wages and the principle of good faith by failing to exhaust the necessary examination, thereby affecting the conclusion of the judgment.
C. Third point
The lower court, for the reasons stated in its judgment, calculated the plaintiffs' monthly prescribed working hours on the premise that paid holidays are not recognized for the plaintiffs, who are seafarers.
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the lower court's determination that misapprehended the legal principles concerning the calculation of monthly prescribed working hours for the purpose of calculating ordinary wages, thereby affecting the conclusion of the judgment.
3. Conclusion
Therefore, the part of the judgment below concerning the losing portions of Plaintiff 1 and Plaintiff 2 is all reversed, and this part of the case is remanded to the court below for further hearing and determination; all of the defendant's appeal is dismissed; and of the costs of the appeal, the portion arising between Plaintiff 3, Plaintiff 4, Plaintiff 5 and the defendant shall be borne by the losing party. It is so decided by the unanimous opinion of the participating Justices as set forth in the Order.
Justice Min Yu-sook (Presiding Justice), Lee Dong-won, Cheon Dae-yeop (Justice in charge), Kwon Yeong-jun