[Plaintiffs, Respondents and Appellants] As indicated in the list of plaintiffs in the attachment. (Attorney Shin Young-hoon for the plaintiffs' legal representative)
[Defendant, Appellant and Respondent] Kumho Tire Co., Ltd. (Attorneys Joo Wan and 4 others for the legal representative)
[Judgment Below] Gwangju High Court Decision 2013Na10115 dated October 16, 2019
[Order]
Among the portion of the judgment below concerning the plaintiffs listed in Attachment 1 that ruled against them, the part concerning additional statutory allowances based on the night shift rotation allowance is reversed, and this part of the case is remanded to the Gwangju High Court. The remaining appeal by the plaintiffs listed in Attachment 1, and the respective appeals by the plaintiffs listed in Attachment 2 and by the Defendant, are all dismissed. The costs of appeal arising between the plaintiffs listed in Attachment 2 and the Defendant shall be borne by each party respectively.
[Reasoning] The grounds of appeal are examined.
1. Determination on the plaintiffs' grounds of appeal
A. Regarding the physical fitness allowance
The court below determined, for the reasons stated in its judgment, that the physical fitness allowance paid by the Defendant does not constitute ordinary wages.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the court below's determination as above that affected the judgment, such as misunderstanding the legal principles on ordinary wages or making erroneous factual findings that exceeded the limits of free evaluation of evidence by violating the rules of logic and experience, as alleged in the grounds of appeal.
B. Regarding the night shift rotation allowance
1) According to the reasoning of the judgment below and the record, the following facts may be known.
A) The Defendant's production and technical workers are divided into day-shift workers and rotating-shift workers, and the rotating shift work pattern is further divided into the 4-group 3-shift system and the 2-group 2-shift system.
B) The Defendant's 4-group 3-shift work pattern is a method of rotating through the morning shift, afternoon shift, late-night shift, and rest group. Workers belonging to the 4-group 3-shift system worked in a repeating cycle of 20 days, whereby each shift group worked 5 days, rested 2 days, then changed shifts to work 5 days and rest 2 days, then changed shifts again to work 5 days and rest 1 day (the rest days following the afternoon shift and the late-night shift are each 2 days, while the rest day following the morning shift is 1 day). The 2-group 2-shift system is a work pattern that rotates between the day shift and the night shift.
C) The Defendant paid KRW 50,000 per month as a night shift rotation allowance, pursuant to the collective agreement in this case, to workers among those belonging to the 4-group 3-shift system who worked the late-night shift in the relevant month.
D) Article 62, Paragraph 2, Item (ra) of the collective agreement in this case provides that "the rotating shift work pattern shall, in principle, be the 4-group 3-shift system."
2) The court below determined, for the reasons stated in its judgment, that the night shift rotation allowance paid by the Defendant cannot be evaluated as consideration for prescribed work (소정근로), and therefore does not constitute ordinary wages.
3) However, the determination of the court below is difficult to accept for the following reasons.
A) Whether a certain wage falls under ordinary wages must be determined according to its objective nature, based on whether the wage is money or valuables paid to the worker as consideration for prescribed work, and is paid regularly, uniformly, and in a fixed manner, rather than by formal criteria such as the name of the wage or the length of the payment cycle.
Consideration for prescribed work means money or valuables that the employer and the worker have agreed to pay in relation to the work that the worker has agreed to ordinarily provide during the working hours (hereinafter "prescribed working hours") set within the statutory working hours between the employer and the worker. Wages that the worker additionally receives from the employer by providing work exceeding the prescribed working hours, or by specially providing work other than the work 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 employer and the worker evaluated the value of the work that the worker agreed to ordinarily provide during the prescribed working hours, and how much money or valuables they agreed to pay for it. Considering that ordinary wages function as the base wage for calculating additional wages, etc. when a worker provides work exceeding the prescribed working hours, it must naturally be a monetary evaluation of the value of the work that the worker ordinarily provides during the prescribed working hours, and it must also be fixed in advance before the worker actually provides extended work, etc. If these requirements are met, it should be regarded as constituting ordinary wages regardless of its name (see Supreme Court en banc Decision 2012Da89399 delivered on December 18, 2013, etc.).
B) Examining the facts found above in light of the above legal principles, the following determination can be made.
(1) The night shift rotation allowance paid by the Defendant was paid to workers among those belonging to the 4-group 3-shift system who worked the late-night shift in the relevant month, as consideration not for the entire 4-group 3-shift work but specifically for the late-night shift work among it. The late-night shift work is merely labor provided during part of the prescribed working hours in accordance with the work pattern of the 4-group 3-shift system as set forth in the collective agreement between the Defendant and the union in this case, and is not work provided in excess of the prescribed working hours. The Defendant paid the night shift rotation allowance to all workers who worked the late-night shift even once in the relevant month, and in making such payment did not require that the number of night working hours reach a certain threshold, nor did it vary the payment amount in proportion to the number of night working hours, but rather paid a fixed amount of KRW 50,000 per month regardless of the number of late-night shifts worked. Ultimately, it appears that the Defendant and the union in this case evaluated the value of work arising from such late-night shift work in monetary terms and fixed the night shift rotation allowance in advance through the collective agreement in this case. Therefore, it is reasonable to view that the night shift rotation allowance has the character of consideration for prescribed work. This conclusion is not altered merely by the circumstance that the late-night shift's working hours are at night.
(2) Article 65 of the collective agreement in this case provides that "for night work, an amount of 50% or more of ordinary wages shall be added and paid in accordance with the provisions of the Labor Standards Act (근로기준법)." However, this circumstance does not obstruct the above finding. This is because the night shift rotation allowance paid by the Defendant is not an allowance under the Labor Standards Act but rather an agreed allowance recognized only by virtue of the collective agreement in this case, whereas the additional wage for night work provided under Article 65 of the collective agreement is of the same nature as the statutory allowance under Article 56 of the Labor Standards Act, and thus the two are separate and distinct from each other.
(3) At the Defendant's workplace, rotating shift work is the principle for production and technical workers, and workers belonging to a rotating shift appear to have continued working in the rotating shift unless reassigned to the day shift. Therefore, rotating shift work, which is the condition for payment of the night shift rotation allowance, constitutes a fixed condition. In this way, it appears that the night shift rotation allowance paid by the Defendant also possesses the character of being paid uniformly, regularly, and in a fixed manner.
4) Nevertheless, the court below's determination that the night shift rotation allowance paid by the Defendant does not constitute ordinary wages, based solely on the reasons stated in its judgment, contains an error that affected the judgment by misunderstanding the legal principles on ordinary wages and failing to conduct the necessary examination. The ground of appeal pointing this out is well-founded.
2. Determination on the Defendant's grounds of appeal
A. Regarding Points 1 and 2
The court below determined, for the reasons stated in its judgment, that the Gokseong transportation subsidy and the process support allowance paid by the Defendant constitute ordinary wages.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the court below's determination as above that affected the judgment, such as misunderstanding the legal principles on ordinary wages, failing to conduct the necessary examination, or making erroneous factual findings that exceeded the limits of free evaluation of evidence by violating the rules of logic and experience, as alleged in the grounds of appeal.
B. Regarding Point 3
The court below found, for the reasons stated in its judgment, that the Defendant had agreed with rotating shift workers to include the 30-minute rest period in working hours, and accordingly, in calculating the night and holiday work allowances, applied 8 hours as the working hours, being the actual working hours of 7 hours and 30 minutes plus the above 30 minutes.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the court below's determination as above that affected the judgment, such as misunderstanding the legal principles on the supplementary nature of the Labor Standards Act, recognized working hours, and prescribed working hours, or violating the principle of party presentation or failing to exercise the right to elicit clarification, or making erroneous factual findings that exceeded the limits of free evaluation of evidence by violating the rules of logic and experience, as alleged in the grounds of appeal.
C. Regarding Point 4
The court below rejected, for the reasons stated in its judgment, the Defendant's argument that where a weekly holiday and an agreed paid day under the collective agreement in this case fall on the same day, the amount corresponding to the agreed paid day within the paid holiday allowance received by the plaintiffs should be deducted.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the court below's determination as above that affected the judgment, such as misunderstanding the legal principles on the supplementary nature of the Labor Standards Act and the holiday system, as alleged in the grounds of appeal.
3. Scope of reversal
The plaintiffs listed in Attachment 2 did not claim the night shift rotation allowance as an item of ordinary wages. Therefore, among the portion of the judgment below that ruled against the remaining plaintiffs excluding the above plaintiffs (i.e., the plaintiffs listed in Attachment 1), the part concerning additional statutory allowances based on the night shift rotation allowance must be reversed.
4. Conclusion
Therefore, among the portion of the judgment below that ruled against the plaintiffs listed in Attachment 1, the part concerning additional statutory allowances based on the night shift rotation allowance is reversed, and this part of the case is remanded to the court below for further hearing and determination; the remaining appeal by the plaintiffs listed in Attachment 1, and the respective appeals by the plaintiffs listed in Attachment 2 and by the Defendant, are all dismissed; and the costs of appeal arising between the plaintiffs listed in Attachment 2 and the Defendant shall be borne by each party respectively. This judgment is rendered as per the Order, by the unanimous opinion of the participating Justices.
[[Attachment 1] List of Plaintiffs: Omitted]
[[Attachment 2] List of Plaintiffs: Omitted]
Justice Lee Dong-won (Presiding Justice), Cho Jae-yeon (Justice in Charge), Min Yu-sook, Cheon Dae-yeop