[Plaintiffs, Appellants] As stated in the list of plaintiffs in the attachment. (Plaintiff 1 and 27 others) (Litigation Counsel: Attorney Han Yong-ho)
[Plaintiffs, Appellants and Appellees] As stated in the list of plaintiffs in the attachment. (Plaintiff 2 and 35 others) (Litigation Counsel: Attorney Han Yong-ho)
[Applicant for Succession of Litigation for Plaintiff 5] Applicant for Succession of Litigation for Plaintiff 5
[Defendant, Appellee and Appellant] Korea Coal Corporation (Litigation Counsel: Lee & Ko LLC, Attorney Lee In-hyeong and 3 others)
[Judgment Below] Seoul High Court Judgment 2017. 9. 13., 2016Na1002 (Chuncheon)
[Order]
1. The part of the judgment below concerning Plaintiff 5 is reversed, and the first instance judgment on this part is vacated. The complaint in this part is dismissed. 2. Among the parts of the judgment below concerning the remaining plaintiffs excluding Plaintiff 5, the portion concerning each amount stated in the column "Amount of Unpaid Allowances by Plaintiff" in Attachment 3 to the judgment below, and the portion concerning the amounts calculated at the rate of 5% per annum from June 1, 2014 to May 26, 2016, and at the rate of 15% per annum from the following day until the date of full payment, are reversed, and this part of the case is remanded to the Seoul High Court. 3. The remaining appeals of the remaining plaintiffs, excluding Plaintiff 5, Plaintiff 8, Plaintiff 14, and Plaintiff 36, are all dismissed. 4. The total litigation costs incurred between Plaintiff 5 and the Defendant shall be borne by Plaintiff 5's litigation counsel, Han Yong-ho.
[Reasoning]
1. Ex officio determination on the part concerning Plaintiff 5
According to the record, it can be seen that Plaintiff 5 died on March 20, 2015. Therefore, the lawsuit filed in the name of Plaintiff 5 after his death is unlawful, and neither an application for correction of party designation nor an application for succession of litigation by his heir may be permitted. Accordingly, it was erroneous for the first instance court and the court below to have proceeded to examine the merits of the part of the lawsuit concerning Plaintiff 5.
2. Determination on the grounds of appeal of the remaining plaintiffs excluding Plaintiff 5 (hereinafter "the remaining plaintiffs") and the grounds of appeal of the Defendant (including, to the extent supplementing the grounds of appeal, the contents of the Defendant's reference material submitted on June 9, 2020, after the period for submitting the appellate brief had expired)
A. As to whether the Type 1 special work allowance received by the plaintiffs who fall under the category of direct skilled workers constitutes ordinary wages (Defendant's ground of appeal No. 2), whether the Type 2 special work allowance received by the plaintiffs who fall under the category of direct skilled workers constitutes ordinary wages, and whether the Type 1 or Type 2 special work allowance received by the plaintiffs among the transport skilled workers, excluding Plaintiff 5, constitutes ordinary wages
1) In order for a certain wage to fall under ordinary wages, it must have the character of being paid "uniformly." Being paid "uniformly" includes not only payment to "all workers" but also payment to "all workers who meet a certain condition or standard." Here, the "certain condition" must be a fixed condition, in light of the concept of ordinary wages, which is intended to calculate a fixed and average wage. Furthermore, considering that ordinary wages are a concept that evaluates the value of prescribed work, the "certain condition or standard," which serves as the criterion for determining whether wages paid to all workers within a certain scope have the quality of uniformity, must be a condition related to the evaluation of the value of prescribed work, such as the content of work, skill, or career experience.
Moreover, in order for a certain wage to fall under ordinary wages, it must be paid on a fixed basis. "Fixedness" refers to "the quality whereby it is determined that a wage will inevitably be paid for the labor provided by a worker, regardless of the worker's performance, achievements, or other additional conditions," and "fixed wage" can be defined as "the minimum wage that is inevitably and definitely paid as consideration for one day's labor to a worker who works the prescribed working hours on any given day, regardless of the name of the wage, even if that worker retires the following day." A wage possessing fixedness is a wage that is scheduled to be paid as a matter of course when a worker provides the prescribed work on any given day, regardless of whether additional conditions are satisfied; therefore, it can be said that whether it is paid, and the amount to be paid, are determined in advance (see Supreme Court en banc Decision 2012Da89399, decided December 18, 2013, etc.).
2) A) The court below determined, for the reasons stated in its judgment, that the portion of the Type 1 special work allowance received by the plaintiffs who fall under the category of direct skilled workers that is linked to 80% of the base pay constitutes ordinary wages, and that the Type 2 special work allowance received by the plaintiffs who fall under the category of direct skilled workers, the Type 1 special work allowance received by Plaintiff 13, Plaintiff 35, Plaintiff 46, Plaintiff 52, Plaintiff 57, Plaintiff 58, Plaintiff 60, Plaintiff 62, Plaintiff 63, Plaintiff 17, Plaintiff 21, Plaintiff 53, Plaintiff 28, Plaintiff 36, and Plaintiff 39, who are transport skilled workers, and the Type 2 special work allowance received by Plaintiff 53, a transport skilled worker, do not constitute ordinary wages.
B) Upon examination in light of the legal principles set forth above and the record, the above determination of the court below contains no error such as misapprehending the legal principles concerning ordinary wages as argued in the grounds of appeal.
3) A) The court below determined, for the reasons stated in its judgment, that the Type 1 special work allowance received by Plaintiff 16, Plaintiff 41, and Plaintiff 47, who are transport skilled workers, the Type 2 special work allowance received by Plaintiff 28, Plaintiff 36, and Plaintiff 39, who are transport skilled workers, and the Type 1 special work allowance received by Plaintiff 38, a transport skilled worker, do not constitute ordinary wages due to a lack of uniformity and fixedness.
B) However, the above determination of the court below is difficult to accept for the following reasons.
(1) According to the reasoning of the judgment below and the record, the following circumstances can be ascertained.
(A) Transport skilled workers perform different duties depending on their job category.
(B) Among the job categories of transport skilled workers, in the case of Plaintiff 16, Plaintiff 41, and Plaintiff 47, who are locomotive operators, all of these plaintiffs received the Type 1 special work allowance on every day of attendance during the relevant period. In the case of Plaintiff 28, Plaintiff 36, and Plaintiff 39, who are electricians among the job categories of transport skilled workers, all of these plaintiffs received the Type 2 special work allowance on every day of attendance during the relevant period. In the case of Plaintiff 38, a wireman among the job categories of transport skilled workers, he received the Type 1 special work allowance on every day of attendance during the relevant period.
(2) These circumstances are examined below in light of the legal principles set forth above.
(A) Since transport skilled workers perform different duties depending on their job category, it is necessary to determine, by dividing transport skilled workers according to job category, whether the relevant special work allowance received by transport skilled workers of the relevant job category constitutes ordinary wages possessing uniformity and fixedness.
(B) However, there is room to view that Plaintiff 16, Plaintiff 41, and Plaintiff 47, who are locomotive operators, all performed the work subject to the Type 1 special work allowance on every day of attendance during the relevant period; that Plaintiff 28, Plaintiff 36, and Plaintiff 39, who are electricians, all performed the work subject to the Type 2 special work allowance on every day of attendance during the relevant period; and that Plaintiff 38, a wireman, performed the work subject to the Type 1 special work allowance on every day of attendance during the relevant period.
If this is the case, there is room to view that the subject work, which is the payment condition for the relevant special work allowance received by the said plaintiffs, is a condition related to the evaluation of the value of prescribed work and thus constitutes a fixed condition rather than a temporary or fluctuating condition. Furthermore, there is room to view that, for the said plaintiffs who performed the work subject to the relevant special work allowance, since payment of the relevant special work allowance was inevitably scheduled upon the provision of prescribed work on any given day regardless of whether additional conditions were satisfied, fixedness was also satisfied.
(3) Therefore, the court below should have further examined how the content of the duties performed by the said plaintiffs according to their respective job categories is specifically related to the subject work, which is the payment condition for the relevant special work allowance, and determined whether the relevant special work allowance received by the said plaintiffs constitutes ordinary wages. Nevertheless, without examining the above circumstances, the court below determined, for the reasons stated in its judgment alone, that the Type 1 special work allowance received by Plaintiff 16, Plaintiff 41, and Plaintiff 47, the Type 2 special work allowance received by Plaintiff 28, Plaintiff 36, and Plaintiff 39, and the Type 1 special work allowance received by Plaintiff 38 do not constitute ordinary wages. Such determination by the court below contains an error affecting the judgment by misapprehending the legal principles concerning ordinary wages and failing to exhaust the necessary examination. The ground of appeal pointing this out is well-founded.
B. As to whether the self-administered performance bonus (자체성과급) constitutes ordinary wages (Defendant's ground of appeal No. 1)
1) The court below determined that the self-administered performance bonus is included in ordinary wages because periodicity and uniformity are recognized in that it is paid regularly once a year to employees, and fixedness is also recognized in that whether it is paid and the amount to be paid for the relevant year are determined according to the previous year's work performance.
2) However, the determination of the court below is difficult to accept for the following reasons.
A) A wage whose payment or amount is determined based on an evaluation of a worker's work performance during the payment target period generally lacks fixedness as a wage for the payment target period. However, if a minimum amount of payment is fixed, such as where a certain amount is paid even if the worker receives the lowest grade in the performance evaluation, that minimum wage can be considered a fixed wage.
Where the payment or amount of a specific wage as a wage for the relevant year is determined according to a worker's work performance in the previous year, if whether that wage is paid or its amount is fixed for the relevant year, that wage should be regarded as a fixed wage for the relevant year. However, even if a wage whose payment or amount is determined based on an evaluation of the previous year's work performance is paid in the relevant year, if there are special circumstances indicating that the wage is in substance a wage for the previous year with only the timing of payment set as the relevant year, fixedness as a wage for the previous year cannot be recognized. Even in this case, if it is agreed that a certain amount will be guaranteed and paid as a minimum even if the worker receives the lowest grade in the performance evaluation, that amount can be regarded as a fixed wage for the previous year to that extent (see the above Supreme Court en banc Decision 2012Da89399; Supreme Court Decision 2017Da206670, decided June 11, 2020, etc.).
B) According to the reasoning of the judgment below and the record, the following circumstances can be ascertained.
(1) Pursuant to the 2012 Budget Formulation Guidelines for Public Enterprises and Quasi-Governmental Institutions, the Defendant, a public enterprise, implemented the self-administered performance bonus system from 2012, and the main contents of the Defendant's relevant regulations concerning the self-administered performance bonus are as follows.
(A) The Defendant pays the self-administered performance bonus in accordance with labor-management agreement and wage-related regulations (Article 18, Paragraph 1 of the Collective Bargaining Agreement).
(B) The self-administered performance bonus is paid, in an amount equal to 200% of the annual monthly base pay, based on the evaluation results separately determined by the president with respect to the previous year's period of service (excluding periods of leave of absence) (Article 23, Paragraph 1 of the Employee Wage Regulations). The base wage for calculation is the average monthly base pay for the previous year's period of service (Article 23, Paragraph 2 of the Employee Wage Regulations). The timing of payment is once a year, at the time of wage payment after the evaluation results are finalized (Article 23, Paragraph 3 of the Employee Wage Regulations).
(2) The Defendant paid the technical staff employees, for three years from 2012 to 2014, each June, a self-administered performance bonus equivalent to 200% of the average monthly base pay for the previous year's period of service.
(3) It appears that a technical staff employee who retired received the self-administered performance bonus for the previous year's period of service, whereas a technical staff employee hired in the relevant year did not receive the self-administered performance bonus for that year.
C) Examining the above factual relationship in light of the legal principles set forth above, there is room to view that the self-administered performance bonus received by the relevant plaintiffs who partially prevailed in the court below (excluding Plaintiff 5; hereinafter "the relevant plaintiffs" excludes Plaintiff 5) was, in substance, a wage for the previous year with only the timing of payment set as the relevant year. Nevertheless, without examining whether it could be regarded as a fixed wage for the relevant year, the court below determined that the self-administered performance bonus received by the said relevant plaintiffs is included in ordinary wages for the relevant year. Such determination by the court below contains an error affecting the judgment by misapprehending the legal principles concerning ordinary wages, etc., and failing to exhaust the necessary examination. The ground of appeal pointing this out is well-founded.
C. As to whether the remaining KRW 50,000 of the lunch subsidy, apart from KRW 50,000, also constitutes ordinary wages
The court below, after finding the facts stated in its judgment, determined that, of the KRW 100,000 lunch subsidy, KRW 50,000 is fixed to be paid every month as long as a technical staff employee provides prescribed work, and thus fixedness is recognized and it is included in ordinary wages, while the remaining KRW 50,000 is not, and thus is not included in ordinary wages.
Upon examination of the reasoning of the judgment below in light of the relevant legal principles and the record, the determination of the court below contains no error, as argued in the grounds of appeal, of violating the rules of logic and experience so as to exceed the limits of the principle of free evaluation of evidence, or of misapprehending the legal principles concerning the fixedness of ordinary wages.
D. As to the remaining plaintiffs' argument of misapprehension of legal principles concerning the weekly holiday allowance
1) The court below dismissed the remaining plaintiffs' claim against the Defendant for the difference in the weekly holiday allowance, on the ground that the weekly holiday allowance is included in the self-administered performance bonus, lunch subsidy, productivity improvement incentive, special area work allowance, etc., which are in the nature of a monthly wage amount or equivalent thereto.
2) The above determination of the court below is difficult to accept for the following reasons.
A) Among the fixed allowances paid monthly to a worker paid on an hourly or daily basis, in addition to the basic hourly wage or basic daily wage, unless otherwise provided in an employment contract, collective bargaining agreement, etc., the weekly holiday allowance—a statutory allowance paid on the premise that a worker is deemed to have worked even though he or she did not actually work on a paid holiday granted pursuant to Article 55 of the former Labor Standards Act (근로기준법) (before amendment by Act No. 15513 of March 20, 2018; hereinafter "the former Labor Standards Act")—is not included therein. Accordingly, a worker paid on an hourly or daily basis may claim the difference between the amount of weekly holiday allowance calculated on the basis of the newly calculated hourly ordinary wage, which includes the fixed allowances paid monthly that fall under ordinary wages under the Labor Standards Act, and the amount of weekly holiday allowance already paid, and this cannot be regarded as a duplicate claim for the weekly holiday allowance (see Supreme Court Decision 2009Da74144, decided January 28, 2010; Supreme Court Decision 2014Da6275, decided August 20, 2014). However, since such fixed allowances paid monthly to a worker paid on an hourly or daily basis include a portion corresponding to the hours treated as paid pursuant to Article 55 of the former Labor Standards Act, it is also permissible to calculate the hourly ordinary wage of a worker paid on an hourly or daily basis by the method of adding, to the hourly amount of the basic hourly wage or basic daily wage, the amount obtained by dividing the monthly fixed allowance by the total number of working hours, which is the sum of the prescribed monthly working hours and the hours treated as paid in this way (see Supreme Court Decision 97Da28421, decided April 24, 1998; Supreme Court Decision 2016Da204271, decided December 27, 2018).
B) According to the reasoning of the judgment below, it can be seen that the remaining plaintiffs are workers paid on a daily basis, who receive a monthly base pay calculated by multiplying the daily base pay by the actual number of days worked each month. According to the legal principles set forth above, since the weekly holiday allowance cannot be regarded as included in the lunch subsidy, productivity improvement incentive, special area work allowance, etc. paid to the remaining plaintiffs, who are workers paid on a daily basis, the remaining plaintiffs may claim the difference between the amount of weekly holiday allowance calculated on the basis of the newly calculated hourly ordinary wage, which includes each of the above fixed allowances paid monthly that fall under ordinary wages under the Labor Standards Act, and the amount of weekly holiday allowance already paid, and this cannot be regarded as a duplicate claim for the weekly holiday allowance.
C) Nevertheless, the court below dismissed the remaining plaintiffs' claim against the Defendant for the difference in the weekly holiday allowance on the ground that the weekly holiday allowance is included in the lunch subsidy, productivity improvement incentive, special area work allowance, etc. This contains an error affecting the judgment by misapprehending the legal principles concerning the calculation of the weekly holiday allowance and the difference in wages. The ground of appeal pointing this out is well-founded.
E. As to whether the basic bonus (기본상여금) constitutes ordinary wages
The court below determined, based on the circumstances stated in its judgment, that the practice within the Defendant of paying the basic bonus only to workers who remain employed on the last day of odd-numbered months has been established as a de facto system and forms part of the content of the employment contract.
Upon examination of the reasoning of the judgment below in light of the relevant legal principles and the record, the determination of the court below contains no error, as argued in the grounds of appeal, of violating the rules of logic and experience so as to exceed the limits of the principle of free evaluation of evidence, or of misapprehending the legal principles concerning the fixedness of ordinary wages and labor practice.
F. As to whether the remaining 20% of the base pay, apart from the 80% received by the relevant plaintiffs who are direct skilled workers, constitutes ordinary wages
The court below determined, for the reasons stated in its judgment, that the amount corresponding to 80% of the base pay received by the relevant plaintiffs who are direct skilled workers constitutes ordinary wages, while the amount corresponding to the remaining 20% of the base pay does not constitute ordinary wages.
Upon examination of the reasoning of the judgment below in light of the relevant legal principles and the record, the determination of the court below contains no error, as argued in the grounds of appeal, of failing to exhaust the necessary examination and violating the rules of logic and experience so as to exceed the limits of the principle of free evaluation of evidence, or of misapprehending the legal principles concerning the fixedness of ordinary wages.
G. As to the argument of misapprehension of legal principles, etc. concerning the method of calculating the hourly ordinary wage for the incentive allowance (장려가급) and the seniority allowance (근속가급) (Defendant's ground of appeal No. 3)
1) With respect to the incentive allowance and the seniority allowance, the court below, on the premise that the number of prescribed working days per month independently set by the relevant business office is mostly 21 days or fewer, interpreted the relevant provision of the Employee Wage Regulations—which provides that, when the number of days of attendance in a month is fewer than the prescribed number of working days of the relevant business office, the monthly fixed amount is reduced by an amount calculated by dividing the monthly fixed amount by 21 and multiplying the result by the number of days of absence—as intended to pay, as a daily wage, an amount corresponding to at least 1/21 of the relevant monthly fixed amount for each actual day worked by a technical staff employee, and accordingly calculated the hourly ordinary wage for the incentive allowance and the seniority allowance by dividing "the incentive allowance or seniority allowance" by 168 (= 21 days × 8 hours).
2) However, the above determination of the court below is difficult to accept for the following reasons.
A) Since the fixed allowances paid monthly to a worker paid on an hourly or daily basis include a portion corresponding to the hours treated as paid pursuant to Article 55 of the former Labor Standards Act, it is permissible to calculate the hourly ordinary wage of a worker paid on an hourly or daily basis by the method of adding, to the hourly amount of the basic hourly wage or basic daily wage, the amount obtained by dividing the monthly fixed allowance by the total number of working hours, which is the sum of the prescribed monthly working hours and the hours treated as paid in this way (see the above Supreme Court Decision 97Da28421, etc.).
B) According to the record, the following facts can be ascertained.
(1) The relevant plaintiffs who partially prevailed in the court below are workers paid on a daily basis, who receive a monthly base pay calculated by multiplying the daily base pay by the actual number of days of attendance each month.
(2) The Defendant's Collective Bargaining Agreement and Rules of Employment provide that the prescribed weekly working hours for technical staff employees, including entry and exit times from the mine, are 40 hours, and that every Sunday is a paid holiday, but do not provide for the prescribed number of working days at the relevant business office. There are months in which the prescribed monthly number of working days at the business office where the said relevant plaintiffs worked exceeded 21 days, and there are also months in which the said relevant plaintiffs' monthly number of days of attendance exceeded 21 days.
(3) Articles 12, 13, and 29 of the Employee Wage Regulations provide, in substance, that a technical staff employee receives a fixed amount of incentive allowance each month (Article 12), and a technical staff employee who has worked for one year or longer receives a fixed amount of seniority allowance each month (Article 13); provided that, if the monthly number of days of attendance is equal to or greater than the prescribed number of working days of the relevant business office, or 21 days or more, the full monthly fixed amount is paid (Article 29, Paragraph 1), and if the monthly number of days of attendance is fewer than the prescribed number of working days of the relevant business office and the monthly number of days of attendance is 20 days or fewer, the monthly fixed amount is reduced by an amount calculated by dividing the monthly fixed amount by 21 and multiplying the result by the number of days of absence (= prescribed number of working days － number of days of attendance) (Article 29, Paragraph 2). In accordance with these provisions, the Defendant paid the relevant incentive allowance and seniority allowance to the said relevant plaintiffs, who are technical staff employees, according to each of their monthly numbers of days of attendance.
C) Considering the circumstances ascertainable from the above factual relationship—namely, that even where a technical staff employee's monthly number of days of attendance exceeds 21 days, the amount that the technical staff employee can receive each month as incentive allowance and seniority allowance is fixed at a set amount; and that, pursuant to Article 29, Paragraph 2 of the Employee Wage Regulations, although the amount received monthly by a technical staff employee as incentive allowance and seniority allowance may be reduced where the employee's monthly number of days of attendance is fewer than the prescribed number of working days of the relevant business office and 20 days or fewer, this provision merely sets forth the method of reducing the incentive allowance and seniority allowance in the event of a technical staff employee's absence, and thus cannot in any way affect the nature of the incentive allowance (Article 12 of the Employee Wage Regulations) and seniority allowance (Article 13 of the Employee Wage Regulations), which are allowances paid on a monthly basis—it is difficult to construe Article 29 of the Employee Wage Regulations as a provision intended to pay, as a daily wage, an amount corresponding to at least 1/21 of the relevant monthly fixed amount of the incentive allowance and seniority allowance for each actual day worked by a technical staff employee.
Rather, since the incentive allowance provided for in Article 12 of the Employee Wage Regulations and the seniority allowance provided for in Article 13 are each fixed allowances paid on a monthly basis, according to the legal principles set forth above, it can be considered that the respective monthly fixed amounts of the incentive allowance and seniority allowance include a portion corresponding to the hours treated as paid pursuant to Article 55 of the former Labor Standards Act.
D) Nevertheless, the court below calculated the hourly ordinary wage on the premise that the incentive allowance and seniority allowance received by the said relevant plaintiffs are daily wages. Such determination by the court below contains an error affecting the judgment by misapprehending the legal principles concerning the calculation of the hourly ordinary wage, among other errors. The ground of appeal pointing this out is well-founded.
3. Conclusion
Accordingly, the part of the judgment below concerning Plaintiff 5 is reversed; and since this part of the case is sufficiently mature for direct adjudication by the Supreme Court, the Court renders its own judgment: the first instance judgment on this part is vacated, and the complaint in this part is dismissed. Without examining the Defendant's remaining grounds of appeal, the portion of the judgment below concerning the remaining plaintiffs, excluding Plaintiff 5, relating to each amount stated in the column "Amount of Unpaid Allowances by Plaintiff" in Attachment 3 to the judgment below, and the portion relating to the amounts calculated at the rate of 5% per annum from June 1, 2014 to May 26, 2016, and at the rate of 15% per annum from the following day until the date of full payment, are reversed, and this part of the case is remanded to the court below for further hearing and determination. The remaining appeals of the remaining plaintiffs, excluding Plaintiff 5, Plaintiff 8, Plaintiff 14, and Plaintiff 36, are dismissed, and the total litigation costs incurred between Plaintiff 5 and the Defendant shall be borne by Plaintiff 5's litigation counsel, Han Yong-ho. It is so decided, by the unanimous opinion of the Justices participating in the decision, as stated in the Order.
[Attachment] List of Plaintiffs: Omitted
Justices Kim Jae-hyeong (Presiding Justice), Min Yu-suk, Lee Dong-won (Justice in Charge), No Tae-ak