[Plaintiffs, Appellants] Plaintiff 1 and 1 other (Attorney Kim Ki-deok, counsel for the plaintiffs)
[Defendant, Appellee] Samyang Traffic Co., Ltd. (Attorney Park Chan-geun of Yulchon LLC (Hwawoo), counsel for the defendant)
[Lower Judgment] Seoul High Court Decision 2015Na2045114 decided April 8, 2016
[Order]
Among the portions of the lower judgment against the plaintiffs, the portion concerning the plaintiffs' claim for unpaid overtime work allowance and the portion concerning Plaintiff 1's claim for unpaid retirement allowance are reversed, and this part of the case is remanded to the Seoul High Court. The plaintiffs' remaining appeal is dismissed in its entirety.
[Reasoning]
The grounds of appeal are examined.
1. Determination as to whether the bonus constitutes ordinary wages
The lower court determined that the bonus, which the Defendant did not pay, pursuant to the collective bargaining agreement, to employees who retired mid-way through the payment calculation period, lacks fixedness and therefore does not constitute ordinary wages.
Upon examination in light of the relevant legal principles and the record, there is no error in the lower court's determination, such as a misunderstanding of the legal principles concerning ordinary wages, as argued in the grounds of appeal.
2. Determination as to the validity of the agreement to offset working hours on a monthly basis
A. Article 56 and Article 50, Paragraphs 1 and 2 of the former Labor Standards Act (근로기준법) (before amendment by Act No. 15513 of March 20, 2018; hereinafter the same) provide that for overtime work exceeding 40 hours per week and 8 hours per day, an overtime allowance of at least 50% added to the ordinary wage must be paid, and Article 15 of the former Labor Standards Act provides that a labor contract setting working conditions that fall short of the standards set by the former Labor Standards Act is void only with respect to that portion, and that the portion rendered void thereby shall be governed by the standards set by the former Labor Standards Act. Accordingly, since the provisions of the former Labor Standards Act requiring the payment of at least 50% added to the ordinary wage for overtime, night, and holiday work set the minimum standard for calculating wages for each type of such work, where labor and management have agreed on a method for calculating additional wages for overtime, night, and holiday work, if the amount calculated according to that labor-management agreement falls short of the aforementioned standard set by the former Labor Standards Act, the labor-management agreement shall be void to the extent of such shortfall, and the portion rendered void thereby shall be governed by the standard set by the former Labor Standards Act (see Supreme Court en banc Decision 2012Da89399 decided December 18, 2013).
B. According to the reasoning of the lower judgment and the record, the following facts may be known.
1) From September 2009 to September 2012, the Defendant paid wages to its drivers, including the plaintiffs, in accordance with the collective bargaining agreement and wage agreement (hereinafter referred to respectively as "the instant Collective Bargaining Agreement" and "the instant Wage Agreement," and collectively as "the instant Collective Bargaining Agreement, etc.") concluded between the Seoul Metropolitan Bus Transport Business Association and the Seoul Bus Labor Union of the Korean Federation of Transport, Public and Social Services Workers' Unions.
2) The instant Collective Bargaining Agreement, etc., applicable to the plaintiffs, established a driving work system based on a two-shift system per day, with 40 hours of work over 5 days per week (hereinafter "daytime work days") as the basic working schedule, and on alternating extended work days, overtime work of approximately 5 hours was to be performed.
3) The instant Collective Bargaining Agreement, etc. set the wage calculation hours as follows: for daytime work days, 9 hours consisting of 8 hours of statutory working hours plus 1 hour of overtime work; and for extended work days, 5 hours of overtime work (hereinafter "the instant guaranteed hours"). Meanwhile, the instant Wage Agreement provided that any working hours on daytime work days falling short of or exceeding 9 hours would not be calculated on a daily basis but offset on a monthly basis, and the instant Collective Bargaining Agreement provided that any working hours on extended work days falling short of or exceeding 5 hours would likewise be offset on a monthly basis (hereinafter, the agreement on such method of calculating working hours is referred to as "the instant monthly offset agreement").
4) However, even where the plaintiffs' actual monthly working hours did not reach the aforementioned guaranteed hours, the Defendant paid the plaintiffs an overtime allowance for 1 hour (150% of the hourly wage) for work on daytime work days, and a shift work allowance for 5 hours (150% of the hourly wage) for work on extended work days. In addition, the Defendant deemed 2 hours of night work for morning-shift workers and 3 hours of night work for afternoon-shift workers, and paid a night work allowance (150% of the hourly wage) accordingly.
C. Examining these facts in light of the legal principles set forth above:
1) The instant monthly offset agreement is an agreement whereby, taking into account the characteristics of the work format and work environment, labor and management deemed a certain number of hours (1 hour per day for daytime work days, 5 hours per day for extended work days) as overtime work hours based on the instant guaranteed hours, regardless of the actual working hours, but did not immediately recognize all hours worked in excess of such deemed overtime hours on a given work day as additional overtime hours; rather, only where an employee's overtime work, calculated on a monthly basis, exceeded the sum of the instant guaranteed hours, would the excess hours be recognized as additional overtime hours beyond the aforementioned deemed overtime hours. Under this agreement, an employee may prove that he or she performed overtime work exceeding the monthly sum of the instant guaranteed hours and thereby have additional overtime hours recognized, and an agreement to the effect that wage calculation hours are to be settled according to actual working hours should not, absent special circumstances, be deemed void.
2) However, the instant monthly offset agreement adopts a method of calculating the overtime hours for which additional overtime allowance is to be paid by comparing the actual working hours aggregated on a monthly basis with the monthly sum of the instant guaranteed hours calculated according to the number of work days. In calculating overtime hours by simply comparing total working hours in this manner, without distinguishing whether the working hours subject to wage calculation are statutory working hours or overtime working hours, where a portion of the actual overtime hours is offset against statutory working hours as a result, only an amount equivalent to the ordinary hourly wage is calculated as wages for that portion, which falls short of the standard set by Article 56, Paragraph 1 of the former Labor Standards Act, requiring that at least 50% be added to the ordinary wage for overtime work.
3) Even if it may be said that, with respect to the night work allowance, the instant Collective Bargaining Agreement, etc. treated employees more favorably than the standard set by the former Labor Standards Act, and even if it is acknowledged that, in months where the actual working hours aggregated on a monthly basis fell short of the monthly sum of the instant guaranteed hours calculated according to the number of work days, the Defendant nevertheless paid employees wages corresponding to the full amount of the instant guaranteed hours, this does not affect the conclusion that the instant monthly offset agreement concerning overtime allowance violates the Labor Standards Act.
4) Ultimately, where the overtime allowance calculated pursuant to the instant monthly offset agreement falls short of the amount calculated under the provisions of the former Labor Standards Act, the offset agreement shall be deemed void, to the extent of such shortfall, as violating the former Labor Standards Act.
D. Nevertheless, without specifically examining, on a month-by-month basis, whether there are instances in which the instant monthly offset agreement becomes void, the lower court determined that the instant monthly offset agreement was entirely valid, on grounds such as that voiding only the instant monthly offset agreement in isolation could undermine the purpose of the wage agreement, which took into account the overall interests of both parties. This determination by the lower court contains an error of failing to conduct the necessary examination due to a misunderstanding of the legal principles concerning the method of calculating overtime allowance under the former Labor Standards Act and Article 15 of the former Labor Standards Act. The ground of appeal pointing this out is well-founded.
3. Scope of reversal
The portion of the lower judgment against the plaintiffs concerning the plaintiffs' claim for unpaid overtime work allowance contains the grounds for reversal set forth above. Meanwhile, if, in the retrial after remand, the scope of the claim for unpaid overtime work allowance to be granted changes in light of the purport of the reversal set forth above, there is room for the scope of Plaintiff 1's claim for unpaid retirement allowance, which is calculated based on the average wage, to change as well. Therefore, the portion of Plaintiff 1's losing portion concerning the claim for unpaid retirement allowance also needs to be examined and determined together with the portion concerning the claim for unpaid overtime work allowance, and must accordingly be reversed.
4. Conclusion
Therefore, among the portions of the lower judgment against the plaintiffs, the portion concerning the plaintiffs' claim for unpaid overtime work allowance and the portion concerning Plaintiff 1's claim for unpaid retirement allowance are reversed, and this part of the case is remanded to the lower court for further examination and determination, and the plaintiffs' remaining appeal is dismissed in its entirety. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Roh Jeong-hee (Presiding Justice), Park Sang-ok, Ahn Cheol-sang (Justice in charge)