[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Jeil Unsu Limited Partnership Company (합자회사 제일운수)
[Judgment Below] Daejeon District Court Judgment 2017Na117082, decided October 16, 2018
[Order]
The part of the judgment below dismissing the Plaintiff's claim as to the claim for the difference in minimum wage and the claim for extended and night-work allowances is reversed, and this part of the case is remanded to the Daejeon District Court. The remainder of the appeal is dismissed.
[Reasoning]
The grounds of appeal (including the statements in the petition for leniency submitted after the deadline for submission of the grounds of appeal, to the extent they supplement the grounds of appeal) are examined as follows.
1. As to the ground of appeal concerning the validity of the agreement to shorten the prescribed working hours
A. Considering comprehensively the content and structure of the relevant provisions of the Constitution and the Minimum Wage Act (최저임금법), the legislative purpose and legislative history of Article 6(5) of the Minimum Wage Act (hereinafter "the special provision at issue"), 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 before and after the agreement to shorten the prescribed working hours, in a case where, under the fixed-quota remittance system (정액사납금제), the employer, with the intent to avoid a situation in which the fixed wage excluding wages based on production performance falls short of the minimum wage, agrees with the taxi driver labor union to shorten only the prescribed working hours—without any change in the actual work pattern or driving hours—in order to nominally increase the amount of the hourly fixed wage calculated on the basis of the prescribed working hours, such an agreement must be regarded as void as an act in circumvention of the law aimed at evading the application of the special provision at issue and other provisions of the Minimum Wage Act, which is a mandatory statute (see Supreme Court en banc Decision 2016Da2451, decided April 18, 2019, etc.).
B. According to the reasoning of the judgment below and the record, the following facts can be ascertained.
1) The Plaintiff is a taxi driver employee who entered into an employment contract with the Defendant, which operates a general taxi transportation business, on March 1, 2013, and who was paid wages under the so-called fixed-quota remittance system, whereby only a fixed amount of the transportation revenue is remitted to the Defendant in the name of a quota, the Plaintiff keeps the remainder of the transportation revenue for himself, and the Plaintiff is paid a certain fixed wage by the Defendant.
2) The special provision at issue, as amended by Act No. 8964 on March 21, 2008, went into effect from July 1, 2009 in the Daejeon Metropolitan City area, where the Defendant's place of business is located, excluding "wages based on production performance" from the scope of wages included in the calculation of the minimum wage.
3) After the special provision at issue came into effect, the Defendant, around September 2009, agreed with its employees to set the prescribed working hours at 6 hours per day, and this prescribed working hours arrangement remained unchanged even when the Plaintiff entered into the employment contract with the Defendant.
4) On December 13, 2013, the Defendant entered into a wage agreement with the Defendant's labor union changing the prescribed working hours to "4 hours and 20 minutes per day in the case of a two-shift system per day," and on December 30, 2014, the Defendant entered into a wage agreement with the Defendant's labor union setting the prescribed working hours at "4 hours and 20 minutes per day in the case of a two-shift system per day." It appears that there was no change in the actual work pattern or driving hours during the period when the prescribed working hours were thus changed.
C. Examining the above factual relationship in light of the legal principles set forth above, there is substantial room to view the prescribed-working-hours portions of the wage agreements dated December 13, 2013 and December 30, 2014 as having been changed, following the enforcement of the special provision at issue, with the intent to avoid a situation in which the fixed wage excluding wages based on production performance falls short of the minimum wage, in order to nominally increase the hourly fixed wage calculated on the basis of the prescribed working hours, and thus as void acts in circumvention of the law aimed at evading the application of the special provision at issue and other mandatory provisions.
D. Nevertheless, the court below determined, for the reasons stated in its judgment, that the agreement to shorten the prescribed working hours could not be deemed void on the ground of lacking manifest reasonableness. The judgment below in this respect contains an error affecting the judgment by misunderstanding the legal principles concerning the validity of the shortening of prescribed working hours and failing to conduct the necessary examination. The ground of appeal pointing this out is well-founded.
2. As to the ground of appeal concerning whether the bonus should be included in the comparison-wage
The court below determined, for the reasons stated in its judgment, that the bonus is included in the comparison wage for the calculation of the minimum wage. 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 regarding the legal principles on comparison wages.
3. As to the ground of appeal concerning the claim for unpaid wages during the period of unfair dismissal
The court below determined, for the reasons stated in its judgment, that the Defendant is obligated to pay the Plaintiff 1,975,110 won as unpaid wages during the period of unfair dismissal, together with delay damages thereon. Examining the reasoning of the judgment below in light of the record, there is no error in the lower court's determination that violates the rules of logic and experience and exceeds the limits of the principle of free evaluation of evidence by failing to conduct the necessary examination.
4. Scope of reversal
As set forth above, the judgment below contains an error affecting the judgment by misunderstanding the legal principles concerning the validity of the shortening of prescribed working hours and failing to conduct the necessary examination; therefore, the portion of the judgment below dismissing the Plaintiff's claim for the difference in minimum wage must be reversed. In addition, the court below also dismissed the claim for extended and night-work allowances on the premise that the agreement to shorten the prescribed working hours could not be deemed void; upon remand, the court below needs to examine and determine the claim for extended and night-work allowances together, in consideration of the purport of this reversal. Consequently, the portion of the judgment below dismissing the Plaintiff's claim as to the claim for the difference in minimum wage and the claim for extended and night-work allowances must be reversed.
5. Conclusion
Therefore, without examining the remaining grounds of appeal, the portion of the judgment below dismissing the Plaintiff's claim as to the claim for the difference in minimum wage and the claim for extended and night-work allowances is reversed, and this part of the case is remanded to the court below for further examination and determination; the remainder of the appeal is dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Roh Tae-ak (Presiding Justice), Park Jung-hwa (Justice in Charge), Kim Seon-su, Oh Kyung-mi