[Plaintiff (Counterclaim Defendant), Respondent and Appellant] Plaintiff (Counterclaim Defendant) 1 and 1 other (Attorneys for the litigation: Daejeon Jonghap Law Firm, in charge of Attorney Ahn Byung-jin and 2 others)
[Plaintiff, Respondent and Appellant] Plaintiff (Attorneys for the litigation: Daejeon Jonghap Law Firm, in charge of Attorney Ahn Byung-jin and 2 others)
[Defendant (Counterclaim Plaintiff), Appellant and Respondent] Jeil Unsu, Limited Partnership Company (Attorney: Lee Bong-jae)
[Judgment Below] Daejeon High Court Decision 2016Na13060, 13077, 13084 decided February 1, 2018
[Order]
The part of the judgment below concerning the principal claim against the Plaintiffs (Counterclaim Defendants) and the Plaintiff is reversed, and this part of the case is remanded to the Daejeon High Court. All appeals by the Defendant (Counterclaim Plaintiff) are dismissed.
[Reasoning]
The grounds of appeal (including, to the extent supplementary thereto, the briefs submitted by the Plaintiffs (Counterclaim Defendants) and the Plaintiff after the deadline for submission of the grounds of appeal had passed) are examined as follows.
1. Overview of the Case
According to the reasoning of the judgment below and the record, the following facts can be ascertained.
A. The Defendant (Counterclaim Plaintiff, hereinafter referred to as the “Defendant”) is a company operating a general taxi transportation business in Daejeon Metropolitan City, and is a workplace to which the Minimum Wage Act (최저임금법) applies. The Plaintiffs (Counterclaim Defendants) and the Plaintiff [hereinafter collectively referred to as the “Plaintiffs”] entered into employment contracts with the Defendant, worked as taxi-driving employees, and subsequently resigned.
B. In the principal claim, the Plaintiffs sought against the Defendant: (i) payment of the difference between the statutory minimum wage and the wages actually received (the “minimum wage differential”), on the ground that the reduction of the prescribed working hours at the Defendant’s workplace was invalid and that the wages paid by the Defendant to the Plaintiffs fell short of the statutory minimum wage, etc.; and (ii) payment of the differential in night-work allowance, on the ground that the hourly ordinary wage that the Defendant used as the basis for calculating the night-work allowance should also be increased in accordance with the statutory minimum wage, and that certain wage items falling within the statutory ordinary wage had not been included therein, etc. In the counterclaim, the Defendant sought against the Plaintiffs (Counterclaim Defendants) payment of the reserve fund for the fare increase portion pursuant to the employment contract.
C. The court below partially dismissed the Plaintiffs’ principal claim on the ground, among others, that the reduction of the prescribed working hours at the Defendant’s workplace was valid, and dismissed the Defendant’s counterclaim. The Plaintiffs and the Defendant each appealed as to the portions in which they lost.
2. Determination on the Plaintiffs’ Grounds of Appeal Concerning the Validity of the Reduction of Prescribed Working Hours
A. Comprehensively considering the content and structure of the relevant provisions of the Constitution and the Minimum Wage Act, the legislative intent and legislative history of Article 6(5) of the Minimum Wage Act (hereinafter referred to as the “Special Provision in this case”), the purpose of the provisions of the Passenger Transport Service Act (여객자동차 운수사업법), the public nature of the general taxi transportation business, and the circumstances surrounding the agreement to reduce the prescribed working hours, among other factors, where, under a fixed quota remittance system (정액사납금제), the employer, with the intent of avoiding a situation in which the fixed wage excluding wages based on output falls short of the minimum wage, agrees with a labor union of taxi-driving employees or with an individual taxi-driving employee to reduce only the prescribed working hours—without any change in the actual form of work or driving hours—in order to increase the nominal amount of the hourly fixed wage calculated on the basis of the prescribed working hours, such agreement must be regarded as void as an unlawful act intended to evade the application of the Special Provision in this case and other provisions of the Minimum Wage Act, which are mandatory provisions of law. This legal principle likewise applies where the employer amends the rules of employment to reduce the prescribed working hours with the consent of a labor union organized by a majority of the taxi-driving employees or of a majority of the employees (see Supreme Court en banc Decision 2016Da2451 decided April 18, 2019).
B. According to the reasoning of the judgment below and the record, the following facts can be ascertained.
(1) The Plaintiffs were paid wages under the so-called fixed quota remittance system, whereby they paid only a fixed amount of the transport revenue to the Defendant as a quota, kept the remainder of the transport revenue for themselves, and received a certain fixed wage from the Defendant.
(2) On September 1, 2007, the Defendant, in concluding a wage agreement with the labor union composed of its employees, agreed to set the prescribed working hours at “6 hours and 40 minutes per day.”
(3) The Special Provision in this case, as amended by Act No. 8964 on March 21, 2008, took effect in the Daejeon Metropolitan City area from July 1, 2009, thereby excluding “wages based on output” from the scope of wages included in the minimum wage.
(4) On September 21, 2009, the Defendant executed an “Employment Contract and Wage Agreement” with the Plaintiffs, agreeing to set the prescribed working hours at “6 hours per day,” and on December 13, 2013, amended its rules of employment to change the prescribed working hours, effective December 16, 2013, to “4 hours and 20 minutes per day in the case of a two-shift system.” There is no evidence that the actual form of work or driving hours changed while the prescribed working hours were thus changed and maintained.
(5) In its brief dated April 21, 2015, the Defendant asserted with respect to the above change in prescribed working hours that it was “an unavoidable means of avoiding the minimum wage restriction by reducing working hours.”
C. Examining these facts in light of the legal principles set forth above, there is substantial room to find that the provisions on prescribed working hours in the “Employment Contract and Wage Agreement” dated September 21, 2009, and in the rules of employment amended on December 13, 2013, were changed with the intent of nominally increasing the hourly fixed wage calculated on the basis of the prescribed working hours, in order to avoid a situation in which, following the enforcement of the Special Provision in this case, the fixed wage excluding wages based on output would fall short of the minimum wage, and that they thus constitute unlawful acts intended to evade the application of the Special Provision in this case and other mandatory provisions of law, and are therefore void.
D. Nevertheless, the court below determined that the provisions on prescribed working hours in the “Employment Contract and Wage Agreement” dated September 21, 2009, and in the rules of employment amended on December 13, 2013, could not be found to be void. The judgment below contains an error affecting the judgment, such as a misunderstanding of the legal principles concerning the validity of the reduction of prescribed working hours. The Plaintiffs’ ground of appeal pointing this out is well-founded.
3. Determination on the Plaintiffs’ and the Defendant’s Grounds of Appeal Concerning the Scope of Wages for Comparison
The court below determined that bonuses and full-attendance allowances are included in the wages included in the minimum wage for drivers in the general taxi transportation business (hereinafter referred to as “wages for comparison”) pursuant to the Special Provision in this case and Article 5-2 of the former Enforcement Decree of the Minimum Wage Act (before amendment by Presidential Decree No. 29469 of December 31, 2018), but that production allowances are not included therein.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the judgment below, as alleged in the grounds of appeal, of exceeding the bounds of the principle of free evaluation of evidence in violation of the rules of logic and experience, or of misunderstanding the legal principles concerning wages for comparison, that would have affected the judgment.
4. Determination on the Defendant’s Ground of Appeal Concerning the Method of Calculating Wages for Comparison
Upon examining the relevant legal principles and the record, there is no error in the judgment below, in calculating the wages for comparison based on the basic pay and allowances actually paid to the Plaintiffs, of misunderstanding the legal principles concerning the minimum wage.
5. Determination on the Defendant’s Ground of Appeal Concerning the Deduction for Sick Leave
The court below did not accept the Defendant’s argument that the days of absence due to the Plaintiffs’ sick leave should be deducted from the number of working days in calculating the minimum wage.
Upon examining the record, there is no error in the judgment below, as alleged in the grounds of appeal, of failing to conduct the necessary examination.
6. Determination on the Defendant’s Ground of Appeal Concerning the Scope of Ordinary Wages
Since the Supreme Court, as the court of final appeal, may examine and determine matters only to the extent of the objections raised as grounds of appeal, the brief of grounds of appeal must specify the grounds of appeal and state, in a concrete and explicit manner, which part of the judgment below violated which statute and in what way. Where the appellant’s brief of grounds of appeal fails to state such concrete and explicit grounds, it must be treated as if no brief of grounds of appeal had been submitted (see Supreme Court Decision 97Da55126 decided March 27, 1998; Supreme Court Decision 2007Du23187 decided January 24, 2008, etc.).
The brief of grounds of appeal submitted by the Defendant merely states, with respect to this ground of appeal, that “bonuses, etc. cannot be regarded as ordinary wages because they lack fixedness, as uncertain conditions serve as the qualifying requirement for their payment.” Examining this in light of the legal principles set forth above, this fails to specify, in a concrete and explicit manner, which part of the judgment below violated which statute and in what way, and thus cannot be regarded as a lawful statement of grounds of appeal.
Furthermore, even upon examining the relevant legal principles and the record, there is no error in the judgment below, as alleged in the grounds of appeal, of misunderstanding the legal principles concerning ordinary wages.
7. Determination on the Defendant’s Ground of Appeal Concerning the Completion of the Statute of Limitations
The court below did not accept the Defendant’s defense of the completion of the statute of limitations. Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the judgment below, as alleged in the grounds of appeal, of violating the principle of party presentation or misunderstanding the legal principles concerning the scope of the interruption of the statute of limitations, etc.
8. Determination on the Defendant’s Ground of Appeal Concerning Set-off by Way of a Claim for Restitution of Unjust Enrichment
The court below determined that it was difficult to recognize the claim for restitution of unjust enrichment asserted by the Defendant, and accordingly did not accept the Defendant’s defense of set-off.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the judgment below, as alleged in the grounds of appeal, of misunderstanding the legal principles concerning unjust enrichment.
9. Determination on the Defendant’s Ground of Appeal Concerning Violation of the Principle of Good Faith
The court below did not accept the Defendant’s defense based on the principle of good faith. Upon examining the reasoning of the judgment below in light of the record, there is no error in the judgment below, as alleged in the grounds of appeal, of exceeding the bounds of the principle of free evaluation of evidence in violation of the rules of logic and experience.
10. Determination on the Defendant’s Ground of Appeal Concerning the Counterclaim
The court below did not accept the Defendant’s counterclaim against the Plaintiffs (Counterclaim Defendants). Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the judgment below, as alleged in the grounds of appeal, of misunderstanding the legal principles concerning the interpretation of dispositive documents, etc.
11. Scope of Reversal
The portion of the judgment below in the principal claim concerning the minimum wage differential claim in which the Plaintiffs lost contains the aforementioned grounds for reversal. However, since the court below calculated the hourly ordinary wage for the night-work allowance differential claim in the principal claim on the premise that the provisions on prescribed working hours in the “Employment Contract and Wage Agreement” dated September 21, 2009, and in the rules of employment amended on December 13, 2013, were valid, if, upon remand, the court below determines, in consideration of the purport of the reversal set forth above, that the two aforementioned reductions of the prescribed working hours are void, there is room for the scope of the amount awarded on the night-work allowance differential claim to change. Therefore, since it is necessary to examine and determine the night-work allowance differential claim portion together, the entire portion of the judgment below in the principal claim in which the Plaintiffs lost is reversed.
12. Conclusion
Without rendering a determination on the remaining grounds of appeal, the portion of the judgment below in the principal claim in which the Plaintiffs lost is reversed, and this part of the case is remanded to the court below for further examination and determination; and since the Defendant’s appeal is without merit, all of it is dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices.
Justices Roh Jeong-hee (Presiding Justice), Kim Jae-hyung (Justice in charge), Ahn Cheol-sang, Lee Heung-gu