[Plaintiff (Selected Party), Appellee and Appellant] Plaintiff (Selected Party) (Attorneys of Law Firm Minsim, Byun Young-cheol and 2 others, for the plaintiff)
[Defendant, Appellant and Appellee] Zyle Daewoo Bus Corporation, the litigation successor of the merged Zyle Daewoo Bus Corporation (Attorney Park Han-woo and 4 others, for the defendant)
[Judgment Below] Busan High Court Decision 2015Na5422 decided November 15, 2017
[Order]
The part of the judgment below against the Plaintiff (Selected Party) is reversed, and this part of the case is remanded to the Busan High Court. The Defendant's appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to the Plaintiff (Selected Party)'s grounds of appeal
A. As to Ground of Appeal No. 1
1) Ordinary wages, which the Labor Standards Act (근로기준법) provides as the standard for calculating additional wages for extended, night, and holiday work, refer to money and valuables agreed to be paid as consideration for regular work, that is, work ordinarily provided by an employee during the prescribed working hours, and which is paid regularly, uniformly, and fixedly. Here, "fixedness" refers to the quality of being predetermined to be paid as a matter of course when an employee provides regular work on any given day, regardless of whether the employee's performance, achievements, or other additional conditions are satisfied (see Supreme Court en banc Decision 2012Da89399 decided December 18, 2013, etc.).
2) The record reveals the following facts.
A) The Defendant, in the course of annual wage negotiations with the Daewoo Bus Branch of the Korean Metal Workers' Union, agreed that, where an agreement to raise the base pay was reached after April 1, the raised base pay would be applied retroactively to April 1 (hereinafter the "retroactive base date") together with the wage increase agreement.
B) Pursuant to the above agreement, the Defendant each year paid, in a lump sum on the pay date following the conclusion of the wage negotiations, the amount of the wage increase corresponding to the period from the retroactive base date to the time the agreement was reached, to employees who had provided regular work during that period (hereinafter, the portion of the retroactively paid wages corresponding to base pay and bonuses is referred to as the "retroactive wage increase portion").
C) Meanwhile, pursuant to the above agreement, the Defendant did not pay the retroactive wage increase portion to employees who had retired before the wage increase agreement was reached.
3) In this case, the retroactive wage increase portion must be found to constitute ordinary wages as defined in Article 6 of the Enforcement Decree of the Labor Standards Act (근로기준법 시행령). The reasons are as follows.
A) Ordinary wages refer to money and valuables paid to an employee as consideration for regular work, and here, "regular work" means work ordinarily provided by the employee during the prescribed working hours. What constitutes consideration for regular work must be determined based on how the employee and the employer evaluated the value of the work that the employee agreed to ordinarily provide during the prescribed working hours, and how much money and valuables they agreed to pay for it.
Wages additionally paid by the employer because the employee provided work exceeding the prescribed working hours or specially provided work beyond what was agreed to be provided under the employment contract, or wages paid irrespective of regular work, cannot be considered consideration for regular work; however, so long as the employee and employer evaluated the value of regular work and determined the wage as consideration therefor, it cannot be said that such wage is not an ordinary wage merely because it was retroactively applied due to the incidental circumstance of delay in collective bargaining. In this case, the retroactive wage increase portion appears to have been paid not for work exceeding the prescribed working hours or work beyond ordinary work, nor irrespective of regular work, but as consideration determined by evaluating the value of regular work.
B) Whether a certain wage falls under ordinary wages must be determined according to its objective nature. Even if it is a retroactive wage increase portion, if the collective agreement, etc. defines it as a wage falling under the statutory ordinary wage category, such as base pay or regular bonus, its nature is identical to that of the original wage.
C) The Labor Standards Act provides for "ordinary wages" as the standard wage for guaranteeing the minimum amount of average wages, which may increase, decrease, or fluctuate depending on actual working hours or performance, and for calculating additional wages for extended, night, and holiday work, dismissal notice allowance, and annual leave allowance, etc. Given the reality in Korea, where it is not uncommon for employees to regularly perform extended, night, and holiday work, the most notable function that the Labor Standards Act assigns to ordinary wages as described above is that they serve as the standard wage for calculating additional wages for extended, night, and holiday work. The Labor Standards Act requires employers to pay employees at least 50% in addition to the ordinary wage for extended, night, and holiday work; the purpose of this is to provide monetary compensation corresponding to the fact that extended work, etc., causes greater fatigue and tension to the employee than work performed within the statutory working hours, and restricts the free time in the employee's personal life. Assuming, for example, that the hourly wage for regular work is 10,000 won, an employee would receive 15,000 won for one hour of extended work. If the hourly wage were retroactively raised to 15,000 won after the fact, but the retroactive increase were not included in the ordinary wage, the wage for one hour of extended work would remain 15,000 won, making the wage for extended work identical to the wage for regular work—a result contrary to the functional purpose of ordinary wages. In the same example, if the hourly wage were retroactively raised from 10,000 won to 17,000 won, and the retroactive wage increase portion were not included in the ordinary wage, the wage for extended work would actually be lower than the wage for regular work, which would be an unreasonable conclusion in which ordinary wages fail to fulfill their function.
D) Even though, at the time employees provided regular work between the retroactive base date and before the wage increase agreement, the fact of a wage increase or its extent was not specifically determined, the employees could expect, based on the annually repeated agreements, that once the wage was raised, the retroactive wage increase portion after the retroactive base date would be paid; and by virtue of the effect of the labor-management agreement on retroactive application, it can be said that the consideration for regular work after the retroactive base date was fixed based on the raised base pay. In other words, such a labor-management agreement merely postponed, out of necessity, the point in time for additional evaluation of the value of regular work until after the work was provided, and the resulting retroactive wage increase portion in this case is not something to be paid only if the employee satisfies additional conditions such as achieving performance or results, but is of a nature to be paid as a matter of course as compensation for the provision of regular work; therefore, it must be found to possess fixedness.
E) The Defendant did not pay the retroactive wage increase portion to employees who retired before the wage increase agreement was reached. However, this is merely a result arising from the fact that the effect of a collective agreement retroactively changing the standards for determining wages and other working conditions does not extend to employees who had already retired before the conclusion of the collective agreement; therefore, this cannot be a reason to view differently the nature of the retroactive wage increase portion in this case, which was paid as a matter of course as compensation to employees who provided regular work.
4) Nevertheless, the court below determined that the retroactive wage increase portion does not constitute ordinary wages, based solely on the circumstances stated in its reasoning. Such determination by the court below contains an error of misunderstanding the legal principles concerning ordinary wages, which affected the outcome of the judgment. The ground of appeal pointing this out has merit.
B. As to Ground of Appeal No. 2
The court below determined, for the reasons stated in its reasoning, that the personal pension insurance premium, the Lunar New Year and Chuseok gift money, and the Lunar New Year and Chuseok homecoming travel expenses at issue in this case do not constitute ordinary wages, and therefore must be excluded when calculating the proper ordinary wages under the Labor Standards Act.
Upon examination in light of the relevant legal principles and the record, the court below's determination contains no error of misunderstanding the legal principles concerning ordinary wages as alleged in the grounds of appeal.
C. As to Ground of Appeal No. 3
The court below determined, for the reasons stated in its reasoning, that even if the Plaintiff (Selected Party) and the selected parties (hereinafter collectively referred to as the "Plaintiffs") performed holiday work after already exceeding the statutory working hours of 40 hours during their days of work obligation, only the additional wage for holiday work is paid for the portion not exceeding 8 hours per day, and the additional wage for extended work is not paid in duplication.
Upon examination in light of the relevant legal principles and the record, the court below's determination contains no error of misunderstanding the legal principles concerning holiday work allowance, etc., as alleged in the grounds of appeal.
2. As to the Defendant's grounds of appeal
A. As to Ground of Appeal No. 1
The court below determined, for the reasons stated in its reasoning, that the regular bonus at issue in this case constitutes ordinary wages possessing regularity, uniformity, and fixedness as consideration for regular work.
Upon examination in light of the relevant legal principles and the record, the court below's determination contains no error of misunderstanding the legal principles concerning the requirements of ordinary wages as alleged in the grounds of appeal.
B. As to Ground of Appeal No. 2
The court below determined, for the reasons stated in its reasoning, that an implicit agreement or practice had been established between the Defendant and the Defendant's employees serving as team leaders and factory workers (직장·공장) to recognize 56 hours of extended work per month regardless of actual working hours, and therefore, in recalculating the extended work allowance at issue in this case, the extended working hours must also be deemed to be 56 hours per month; and accordingly rejected the Defendant's argument that additional extended work allowance could be claimed only if the Plaintiffs' actual extended working hours exceeded the agreed hours.
Upon examination in light of the relevant legal principles and the record, the court below's determination contains no error of misunderstanding the legal principles concerning the nature of wages, etc., as alleged in the grounds of appeal.
C. As to Ground of Appeal No. 3
The court below, comprehensively considering the circumstances stated in its reasoning, rejected the Defendant's defense that the Plaintiffs' claim for additional statutory allowances by adding the regular bonus at issue in this case to the ordinary wage was impermissible as being contrary to the principle of good faith, on the ground that even if the Defendant were to bear a new financial burden due to this claim and suffer a deterioration in its financial and management condition, it is difficult to conclude that the degree of such burden or deterioration would cause serious managerial difficulty beyond what the Defendant could bear or would endanger the survival of the company.
Upon examination in light of the relevant legal principles and the record, the court below's determination contains no error of misunderstanding the legal principles concerning the defense based on the principle of good faith, as alleged in the grounds of appeal.
3. Conclusion
Therefore, the part of the judgment below against the Plaintiff (Selected Party) is reversed, and this part of the case is remanded to the court below for further hearing and determination; the Defendant's appeal is dismissed as being without merit. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
[Attachment] List of Selected Parties: Omitted
Justices Kim Jae-hyeong (Presiding Justice), Ahn Cheol-sang, Roh Jeong-hee (Justice in Charge), Lee Heung-gu