[Plaintiffs, Appellees] Plaintiff 1 and 1 other (Attorney Kim Ik-hwan, counsel for the plaintiffs)
[Defendant, Appellant] Samsung SDI Co., Ltd. (Attorneys Jang Sang-gyun and 4 others of Bae, Kim & Lee LLC (Yulchon LLC) (Peace & Pacific), counsel for the defendant)
[Note: The Korean text states "법무법인(유한) 태평양" which is Yulchon's predecessor name; the firm name should be rendered as "Bae, Kim & Lee LLC" — however, to remain faithful, it is more accurate to translate as "Law Firm (LLC) Taepyeong (Bae, Kim & Lee)".]
[Lower Court Judgment] Busan High Court Judgment 2018Na58007, decided February 19, 2020
[Order]
The part of the lower court's judgment concerning Plaintiff 2 is reversed, and this part of the case is remanded to the Busan High Court. The Defendant's appeal against Plaintiff 1 is dismissed. The costs of the appeal with respect to Plaintiff 1 shall be borne by the Defendant.
[Reasoning]
The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal, to the extent it supplements the grounds of appeal) are examined.
1. As to Ground of Appeal No. 1
A. As to the part concerning Plaintiff 2
1) Whether a certain wage falls under ordinary wages should be determined based on its objective nature, that is, whether it is money or goods paid to an employee as consideration for prescribed work (소정근로) and is paid regularly, uniformly, and in a fixed manner. "Consideration for prescribed work" means money or goods that the employer and employee agree to pay for the work that the employee has agreed to ordinarily provide during the prescribed working hours. Wages additionally paid by the employer because the employee provided work in excess of the prescribed working hours, or because the employee specially provided work other than that agreed to be provided under the employment contract, or wages paid without relation to work during the prescribed working hours, cannot be considered 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 employer and employee 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).
2) According to the reasoning of the lower court's judgment and the record, the following facts can be known.
A) From before 1980 until around March 1994, the Defendant paid to monthly-salaried employees, such as office workers, "an allowance equivalent to 20% of the base pay" under the name of "overtime allowance," in addition to the base pay, without separately paying statutory allowances for weekday overtime and night work, whereas to hourly-paid employees, the Defendant did not pay the aforementioned "allowance equivalent to 20% of the base pay," but instead paid statutory allowances calculated according to the actual hours of weekday overtime and night work.
B) After the early-commute-and-leave system was implemented at the Samsung Group level, from April 1994 the Defendant began to pay hourly-paid employees, under the name "self-development expenses," the "allowance equivalent to 20% of the base pay" that had previously been paid only to monthly-salaried employees, and around that time, the name of the "allowance equivalent to 20% of the base pay" that had been paid to monthly-salaried employees was also changed to "self-development expenses." During the period when the early-commute-and-leave system was in effect, hourly-paid employees were paid statutory allowances calculated according to their actual weekday overtime and night work hours, separately from the "self-development expenses." The early-commute-and-leave system was abolished around February 2002.
C) The above "self-development expenses" were renamed, effective March 1, 2005, to "overtime allowance" for monthly-salaried employees and to "overtime allowance II" for hourly-paid employees, respectively, in order to clarify the compensation system for overtime work of office workers, which had been pointed out as an issue in the special labor inspection conducted by the Ministry of Labor around September 2004.
D) Thereafter, from around March 2006, the "allowance equivalent to 20% of the base pay" that had been paid to all hourly-paid employees under the name "overtime allowance II" was absorbed into the base pay, but from around March 2011, it was again excluded from the base pay for hourly-paid employees under the annual salary system, and around that time, the name of the "allowance equivalent to 20% of the base pay" was changed to "fixed overtime allowance," without distinction between monthly-salaried and hourly-paid employees (hereinafter, the fixed overtime allowance paid to monthly-salaried employees is referred to as the "fixed overtime allowance at issue in this case").
E) Meanwhile, the Defendant's Rules of Employment, as amended in 2013, contain a provision to the effect that, with respect to the method of paying the fixed overtime allowance at issue in this case, for newly hired employees, mid-term hires, and reinstated employees, the amount shall be calculated on a daily pro-rata basis in proportion to the number of working days from the date of appointment, and for employees on sick leave, employees on leave of absence, and retirees, the amount shall be calculated on a daily pro-rata basis up to the last working day. Also, the Defendant's "2013 Wage Standards" provide, with respect to the fixed overtime allowance at issue in this case, that "48 wage-hours, 20% of base pay," corresponding to 32 hours per month of ordinary overtime work in excess of the prescribed monthly working hours (240 hours), shall be included in and paid as part of the monthly salary.
3) Examining the above facts and the following circumstances derivable therefrom in light of the legal principles set out above, it is difficult to view that the fixed overtime allowance at issue in this case was paid as consideration for prescribed work.
A) It appears that, until around March 1994, the Defendant, unlike with hourly-paid employees, paid monthly-salaried employees an amount equivalent to 20% of the base pay as "overtime allowance" without separately calculating actual weekday overtime and night work hours. No material can be found in the record to suggest that the "overtime allowance" thus paid constituted consideration for the work that monthly-salaried employees agreed to ordinarily provide during their prescribed working hours.
B) Even though the name of the above "overtime allowance" was changed to "self-development expenses" during the period when the early-commute-and-leave system was in effect, and an allowance of the same name was also paid to hourly-paid employees, in light of the fact that, during the same period, hourly-paid employees were paid separate statutory allowances for weekday overtime and night work, it is difficult to conclude that the nature of the "allowance equivalent to 20% of the base pay," which continued to be paid to monthly-salaried employees as before, was changed to that of consideration for prescribed work.
C) Rather, in light of the fact that, after the abolition of the early-commute-and-leave system, from March 1, 2005, the name of the above allowance was reverted from "self-development expenses" to "overtime allowance" for the purpose of clarifying the compensation system for overtime work of office workers, who appear to have generally been monthly-salaried employees, and that, between around March 2006 and around March 2011, the "allowance equivalent to 20% of the base pay" paid to hourly-paid employees was absorbed into the base pay, whereas the same allowance paid to monthly-salaried employees during the same period continued to be paid under the name "overtime allowance," it cannot be ruled out that, at least after the abolition of the early-commute-and-leave system, the "allowance equivalent to 20% of the base pay" was paid as consideration for work provided by monthly-salaried employees in excess of the prescribed weekday working hours. In particular, in light of the contents of the "2013 Wage Standards," there is also room to view that the Defendant paid monthly-salaried employees the fixed overtime allowance at issue in this case by deeming 32 hours per month, corresponding to 20% of the prescribed working hours of 240 hours per month, as weekday overtime and night work hours, regardless of the actual weekday overtime and night work hours, and paid the allowance as consideration therefor.
D) The mere fact that the Defendant paid the fixed overtime allowance at issue in this case to newly hired employees, retirees, etc. on a pro-rata basis cannot by itself lead to the conclusion that the allowance was paid as consideration for prescribed work.
4) Nevertheless, the lower court determined, for the reasons stated in its judgment alone, that the fixed overtime allowance at issue in this case, paid by the Defendant to monthly-salaried employees of the Defendant, including Plaintiff 2, constituted ordinary wages as consideration for prescribed work. Such determination by the lower court is erroneous in that it misapprehended the legal principles concerning the requirement of consideration for prescribed work as an element of ordinary wages and failed to conduct the necessary examination, thereby affecting the judgment. The ground of appeal pointing this out is well-founded with respect to the part concerning Plaintiff 2.
B. As to the part concerning Plaintiff 1
The Defendant also appealed with respect to the part of the lower court's judgment concerning Plaintiff 1. However, according to the reasoning of the lower court's judgment and the record, it can be known that Plaintiff 1 claimed the difference in statutory allowances for the period from September 2012 to July 2013, during which he worked as an hourly-paid employee, and that the Defendant, while acknowledging that the fixed overtime allowance paid to hourly-paid employees constitutes ordinary wages, argues that the "fixed overtime allowance at issue in this case," paid to monthly-salaried employees, does not constitute ordinary wages. Therefore, the lower court's error in finding that the fixed overtime allowance at issue in this case constitutes ordinary wages cannot be deemed to have affected the outcome of the judgment with respect to the part concerning Plaintiff 1, and it cannot be said that the Defendant has stated grounds of appeal with respect to this part. Accordingly, the appeal with respect to this part is not accepted.
2. As to Ground of Appeal No. 2
Whether an agreement on a comprehensive wage system (포괄임금제) has been established—whereby, without predetermining the basic wage, the sum of various allowances is set as the monthly salary amount or daily wage, or the basic wage is set and a fixed amount is paid monthly as various allowances—must be determined specifically by comprehensively considering various circumstances, such as working hours, the form of work and the nature of the duties, the unit for calculating wages, the contents of collective agreements and rules of employment, and the actual practices at similar workplaces. Even if, in a particular case, overtime, night, and holiday work is naturally expected due to the form of work or the nature of the duties, where the collective agreement, rules of employment, wage regulations, etc. clearly divide and provide for the payment of overtime, night, and holiday work allowances, etc. as separate detailed items apart from the base pay, this does not constitute a comprehensive wage system, and the mere fact that there is an agreement in the collective agreement, etc. on overtime work hours exceeding a certain number of hours, or that the wage increase rate was determined based on an amount including allowances in the base pay, cannot readily lead to the hasty conclusion that there is an agreement on such a comprehensive wage system (see, e.g., Supreme Court Decision 2008Da57852, decided December 10, 2009). Furthermore, in order to recognize that a comprehensive wage agreement has been established by implicit agreement, it is necessary not only that there be a substantive need therefor, such as where it is difficult to accurately calculate actual working hours due to the special nature of the form of work, or where a certain amount of overtime, night, or holiday work is expected, but also that, in light of all the circumstances, including working hours and the form or level of the wages set, it be objectively recognized that the employer and employee agreed not to pay any additional allowance beyond the fixed monthly salary amount or daily wage, or agreed not to pay a specific allowance (see Supreme Court Decision 2016Do1060, decided October 13, 2016).
The lower court determined, for the reasons stated in its judgment, that it is difficult to conclude that an agreement was reached between the Defendant and its monthly-salaried employees to receive the fixed overtime allowance at issue in this case as a comprehensive wage in lieu of weekday overtime and night work allowances, and that it is also insufficient to recognize that such an agreement was reached implicitly. Examining the reasoning of the lower court's judgment in light of the legal principles set out above and the record, there is no error in the lower court's determination, such as violating the principle of logic and experience and exceeding the limits of free evaluation of evidence, or misapprehending the legal principles concerning comprehensive wage agreements, as alleged in the grounds of appeal.
3. Conclusion
Therefore, the part of the lower court's judgment concerning Plaintiff 2 is reversed, and this part of the case is remanded to the court below for further examination and determination; the Defendant's appeal against Plaintiff 1 is dismissed, and the costs of the appeal with respect to Plaintiff 1 shall be borne by the losing party. This judgment is rendered as set forth in the Order, with the unanimous consent of the participating Justices.
Justice Kim Jae-hyung (Presiding Justice), Justice Noh Jeong-hee, Justice Lee Heung-gu (Justice in charge)