[Plaintiffs, Appellants] Plaintiff 1 and 4 others (Attorney Kim Ki-deok, Counsel for the plaintiffs)
[Defendant, Appellee] Yeongsin Passenger Bus Co., Ltd. (Yu Byeong-ok, Attorney at Law of Samsong Law Firm, Counsel for the defendant)
[Judgment Below] Seoul Northern District Court Decision 2015Na30648 rendered on May 23, 2017
[Order]
Among the portions of the judgment below that ruled against the Plaintiffs, the portion concerning the Plaintiffs' claim for unpaid overtime allowance and the portion concerning Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5's claim for unpaid retirement allowance are reversed, and this part of the case is remanded to the Seoul Northern District Court. All remaining appeals by the Plaintiffs are dismissed.
[Reasoning]
The grounds of appeal are examined.
1. Whether the bonus constitutes ordinary wages
The court below determined that the bonus, which the Defendant did not pay to employees who retired during the calculation period pursuant to the collective agreement, does not constitute ordinary wages.
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the judgment below misunderstanding the legal principles concerning ordinary wages as argued in the grounds of appeal.
2. The validity of the monthly offset agreement regarding working hours
A. Article 56, Article 50, Paragraphs 1 and 2 of the Labor Standards Act (근로기준법) provide that for overtime work exceeding 40 hours per week or 8 hours per day, an overtime allowance of at least 50% added to the ordinary wage must be paid (Article 56 of the Labor Standards Act was amended by Act No. 15513 on March 20, 2018, but the provisions regarding overtime allowance did not change before and after the amendment). Article 15 of the Labor Standards Act provides that an employment contract stipulating working conditions that fall short of the standards set forth in the Labor Standards Act shall be null and void only with respect to that portion, and the portion rendered null and void shall be governed by the standards set forth in the Labor Standards Act.
Since the Labor Standards Act provision requiring at least 50% to be added to the ordinary wage for overtime work sets the minimum standard for calculating wages for overtime work, when labor and management have agreed on a method for calculating additional allowances for overtime work, if the amount calculated according to the labor-management agreement falls short of the standard set forth in the Labor Standards Act, the labor-management agreement is null and void to that extent, and the portion rendered null and void must follow the standard set forth in the Labor Standards Act (see Supreme Court en banc Decision 2012Da89399 rendered on December 18, 2013).
B. According to the reasoning of the judgment below and the record, the following facts can be established.
(1) From August 2009 to September 2012, the Defendant paid wages to the driving staff, including the Plaintiffs, in accordance with the collective agreement and wage agreement (hereinafter referred to as "the collective agreement in this case, etc.") concluded between the Seoul Metropolitan Bus Transport Business Association and the Seoul Bus Workers' Union of the Korean Federation of Transport, Public and Social Services Workers' Unions.
(2) The collective agreement in this case, etc., applicable to the Plaintiffs, established a two-shift-per-day work system for driving staff, based on 5 days per week (hereinafter "day-shift work days") of 40 hours of work, with overtime work of approximately 5 hours performed on alternating "extended work days."
(3) Regarding the hours used for wage calculation, the collective agreement in this case, etc. established that day-shift work days consist of 9 hours, including 8 hours of prescribed working hours and 1 hour of overtime work, and extended work days consist of 5 hours of overtime work (hereinafter "the guaranteed hours in this case"). Meanwhile, the wage agreement in this case provided that working hours on day-shift 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 collective agreement in this case provided that 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 this method of calculating working hours is referred to as "the monthly offset agreement in this case").
However, even when the actual monthly working hours did not reach the above guaranteed hours, the Defendant paid the Plaintiffs 1 hour's worth of overtime allowance (150% of the hourly wage) for work on day-shift work days, and 5 hours' worth of shift work allowance (150% of the hourly wage) for work on extended work days. Additionally, night work was deemed to be 2 hours for morning-shift workers and 3 hours for afternoon-shift workers, and night work allowance (150% of the hourly wage) was paid accordingly.
C. Examining these facts in light of the legal principles set forth in Paragraph 2.A above.
(1) The monthly offset agreement in this case is an agreement between labor and management to determine overtime working hours on a monthly basis, taking into account the characteristics of the work format and work environment, as follows: ① Regardless of actual working hours, a certain amount of time (1 hour per day for day-shift work days, 5 hours per day for extended work days) is deemed to be overtime working hours based on the guaranteed hours in this case. ② However, even if an employee's actual overtime working hours on a given work day exceed the deemed overtime working hours as set forth above, the excess working hours are not immediately recognized in full as additional overtime working hours; rather, only when an employee's overtime work, aggregated on a monthly basis, exceeds the sum of the guaranteed hours in this case, is that excess working time recognized as additional overtime working hours beyond the deemed overtime working hours as set forth above.
According to the above agreement, an employee may prove that he or she performed overtime work exceeding the monthly sum of the guaranteed hours in this case and thereby have additional overtime working hours recognized, and the mere fact that an agreement was made to settle the hours used for wage calculation according to actual working hours does not by itself warrant a conclusion that this agreement is null and void.
(2) However, the monthly offset agreement in this case adopts a method of calculating the overtime working 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 guaranteed hours in this case calculated according to the number of working days. In such a case, where the overtime working hours are calculated by simply comparing the total working hours without distinguishing whether the working hours subject to wage calculation are prescribed working hours or overtime working hours, and as a result, a portion of the actual overtime working hours overlaps with and is offset against the prescribed working hours, only an amount equivalent to the ordinary hourly wage is calculated as wages for that portion, which falls short of the standard set forth in Article 56, Paragraph 1 of the Labor Standards Act, requiring at least 50% to be added to the ordinary wage for overtime work.
Even though it may be found that the collective agreement in this case, etc. treated employees more favorably than the standard set forth in the Labor Standards Act with respect to night work allowance, and that even in months where the actual working hours aggregated on a monthly basis fell short of the monthly sum of the guaranteed hours in this case calculated according to the number of working days, the Defendant paid employees the full amount of wages corresponding to the guaranteed hours in this case, this does not affect the conclusion that the monthly offset agreement in this case regarding overtime allowance violates the Labor Standards Act.
(3) Ultimately, where the overtime allowance calculated pursuant to the monthly offset agreement in this case falls short of the amount calculated according to the provisions of the Labor Standards Act, the above offset agreement is null and void as violating the Labor Standards Act to that extent.
D. Nevertheless, without specifically examining month by month whether there were instances in which the monthly offset agreement in this case became null and void, the court below determined that the monthly offset agreement in this case was entirely valid, on the grounds, among others, that invalidating only the monthly offset agreement in this case in isolation could undermine the purpose of the wage agreement, which took into account the overall interests of both parties. This determination 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 Labor Standards Act and Article 15 of the Labor Standards Act. The grounds of appeal pointing this out are justified.
Meanwhile, the court below applied the monthly offset agreement in this case in a manner that compared the actual working hours aggregated on a monthly basis, without distinguishing between day-shift work days and extended work days, against the monthly sum of the guaranteed hours in this case calculated according to the number of working days. However, since day-shift work days are governed by the wage agreement in this case and extended work days are separately governed by the collective agreement in this case, there is room to interpret the monthly offset agreement in this case as distinguishing between day-shift work days and extended work days and limiting the subject of offsetting overtime working hours to the same type of work day, and this matter also requires examination.
3. Scope of reversal
The portion of the judgment below that ruled against the Plaintiffs, specifically the portion concerning the Plaintiffs' claim for unpaid overtime allowance, contains the grounds for reversal set forth above. Meanwhile, if, in the court below after remand, the scope of the claim for unpaid overtime allowance to be granted changes in consideration of the purport of the above reversal, there is room for the scope of the claim for unpaid retirement allowance by Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5, which is calculated based on average wages, to change as well; therefore, the portion of the judgment against these Plaintiffs concerning the claim for unpaid retirement allowance must also be reversed so that it may be examined and determined together with the portion concerning the claim for unpaid overtime allowance.
4. Conclusion
Among the portions of the judgment below that ruled against the Plaintiffs, the portion concerning the Plaintiffs' claim for unpaid overtime allowance and the portion concerning Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5's claim for unpaid retirement allowance are reversed, and this part of the case is remanded to the court below for further examination and determination; all remaining appeals by the Plaintiffs are dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices.
Justice Lee Dong-won (Presiding Justice), Kim Jae-hyeong (Justice in charge), Min Yu-sook, Noh Tae-ak