[Plaintiffs (Selected Parties), Appellants and Appellees] Plaintiff (Selected Party) 1 and 2 others (Attorney: Law Firm You&I, in charge attorney Lee Sang-ho)
[Defendant, Appellee and Appellant] Geumnam Express Co., Ltd. (Attorneys: Kim Yong-sang and 2 others)
[Lower Court Judgment] Daejeon High Court Decision 2013Na32 decided November 13, 2015
[Order]
The part of the lower court judgment excluding the claims of the Plaintiffs (Selected Parties) and the Selected Parties for full-attendance allowance, paid holiday allowance (excluding the Workers' Day portion), excess full-attendance allowance, and additional retirement allowance is reversed, and this part of the case is remanded to the Daejeon High Court. The remaining appeal of the Plaintiffs (Selected Parties) is dismissed in its entirety.
[Reasoning] The grounds of appeal are examined.
1. Judgment on the grounds of appeal of the Plaintiffs (Selected Parties, hereinafter “Plaintiffs”) and the Defendant concerning the scope of ordinary wages
A. Judgment on the Plaintiffs' ground of appeal concerning the CCTV allowance paid to the remaining Selected Parties other than Plaintiffs, Selected Party 4, and Selected Party 12, and the driver's mutual aid association dues paid up to January 2011
Since the appellate court may only examine and judge matters within the scope of the objections raised as grounds of appeal, the appellate brief must specify the grounds of appeal and state concrete and explicit reasons as to which part of the lower court judgment violated which statute and in what manner. If the appellate brief submitted by the appellant fails to state such concrete and explicit reasons, it must be treated as if no appellate brief had been submitted (see Supreme Court Decision 97Da55126 decided March 27, 1998; Supreme Court Decision 2007Du23187 decided January 24, 2008, etc.).
The petition of appeal submitted by the Plaintiffs did not state any grounds of appeal regarding whether the "CCTV allowance paid to the remaining Selected Parties other than Plaintiffs, Selected Party 4, and Selected Party 12" and the "driver's mutual aid association dues paid up to January 2011" should be included in ordinary wages. In the appellate brief submitted by the Plaintiffs, the section titled "Summary of the Lower Court Judgment and Summary of Grounds of Appeal" merely states, with respect to the "CCTV allowance," that "it is proper to include it for the entire period," and with respect to the "driver's mutual aid association dues," that "it is proper to include it." The section titled "Specific Grounds of Appeal" likewise fails to state which part of the lower court judgment violated which statute and in what manner with respect to the "CCTV allowance paid to the remaining Selected Parties other than Plaintiffs, Selected Party 4, and Selected Party 12" and the "driver's mutual aid association dues paid up to January 2011."
Examining this in light of the legal principles set forth above, such petition of appeal and appellate brief cannot be regarded as stating lawful grounds of appeal, since they fail to specify the grounds of appeal and fail to disclose concrete and explicit reasons as to which part of the lower court judgment violated which statute and in what manner.
B. Judgment on the Plaintiffs' ground of appeal concerning the bonus
This ground of appeal argues that the lower court erred in rejecting the argument that the bonus paid from February 2011 onward constitutes ordinary wages.
According to the record, the lower court determined that the bonus paid from February 2011 onward constitutes ordinary wages, and recalculated the overtime allowance and other amounts on that basis.
Therefore, this ground of appeal is without merit, and there is no need to examine it further.
C. Judgment on the remaining grounds of appeal
The lower court determined that the bonus, meal allowance, and CCTV allowance for Selected Party 4 and Selected Party 12 paid by the Defendant, as well as the continuous service allowance paid up to January 2011, constitute ordinary wages, but that the continuous service allowance and driver's mutual aid association dues paid by the Defendant from February 2011 onward (which are subject to a working-days condition in addition to an incumbency condition) do not constitute ordinary wages.
Examining the reasoning of the lower court judgment in light of the relevant legal principles, there is no error in the lower court's determination, such as a misapprehension of the legal principles concerning the scope of ordinary wages or a departure from the limits of free evaluation of evidence in violation of the rules of logic and experience, as argued in the grounds of appeal.
2. Judgment on the Plaintiffs' ground of appeal concerning the calculation of the hourly ordinary wage
A. When converting a fixed allowance paid in the form of a monthly or daily wage, as wages for agreed working hours exceeding the standard working hours prescribed by the Labor Standards Act (근로기준법), into an hourly ordinary wage, in calculating the number of agreed working hours to be included in the total number of working hours that serves as the basis for calculating the hourly ordinary wage, unless otherwise specifically agreed, the actual number of hours which the worker has agreed to work must be aggregated as such; it is not permissible to aggregate the number of overtime hours and night work hours after applying the premium rate used for calculating premium allowances. This legal principle applies equally where a collective bargaining agreement sets a premium rate for the weekly holiday allowance. Accordingly, when calculating the number of hours deemed to have been worked on the weekly holiday, which is included in the total number of working hours, the premium rate set for the weekly holiday allowance should not be taken into account (see Supreme Court en banc Decision 2015Da73067 decided January 22, 2020).
B. According to the reasoning of the lower court judgment, the following facts may be known.
(1) The collective bargaining agreements concluded in 2007, 2009, and 2011 (hereinafter “the collective bargaining agreements in this case”) and the wage agreements concluded from 2007 through 2011 (hereinafter “the wage agreements in this case”) between the Defendant and the △△△△ Branch under the ○○ Chapter of the National Federation of Motor Vehicle Transport Workers' Unions, to which the Plaintiffs and the Selected Parties belong, provide as follows regarding working hours and wages.
(A) The daily working hours shall be 8 hours, but overtime work of up to 30 hours per week (22.5 hours in the case of 2011) may be performed, and night work hours of up to 3 hours per week (2.5 hours in the case of 2011) are included within the overtime working hours.
(B) The daily working hours serving as the basis for wage calculation are 8 basic working hours, 4.5 overtime working hours, and 0.5 night working hours.
(C) The weekly holiday allowance is calculated, pursuant to the "Wage Structure and Calculation Standards," which forms part of the wage agreements in this case, by multiplying the basic hourly wage by 12 hours, calculated according to the formula "8 hours × 150/100."
(2) The Defendant treated the basic hourly wage calculated pursuant to the annual wage agreement as the hourly ordinary wage, determined a "daily wage amount" including the basic pay, overtime allowance, night work allowance, and weekly holiday allowance calculated based on the basic hourly wage, and then paid the monthly basic pay by multiplying the daily wage amount by the number of days worked by the Plaintiffs and the Selected Parties.
(3) The Plaintiffs and the Selected Parties worked, on each working day, for the agreed working hours exceeding the standard working hours prescribed by the Labor Standards Act, and were paid, as consideration for the agreed working hours, various fixed allowances in the form of monthly or daily wages in addition to the monthly basic pay.
C. Examining these facts in light of the legal principles set forth above, in calculating the total number of working hours for the purpose of calculating the hourly ordinary wage of each of the above fixed allowances, the overtime working hours, night working hours, and the hours deemed to have been worked on the weekly holiday, without taking the premium rate into account, must be included.
Nevertheless, with respect to fixed allowances paid in the form of daily wages, the lower court included, in the total number of working hours for calculating the hourly ordinary wage, the overtime working hours and night working hours calculated by taking the premium rate into account; and with respect to fixed allowances paid in the form of monthly wages, the lower court included, in the total number of working hours for calculating the hourly ordinary wage, the overtime working hours, night working hours, and the hours deemed to have been worked on the weekly holiday, calculated by taking the premium rate into account. The lower court's determination contains an error that affected the judgment, by misapprehending the legal principles concerning the calculation of the hourly ordinary wage. The ground of appeal pointing this out is well-founded.
3. Judgment on the Plaintiffs' ground of appeal concerning the full-attendance allowance and paid holiday allowance (excluding the Workers' Day portion)
The lower court rejected the claims of the Plaintiffs and the Selected Parties for unpaid full-attendance allowance and unpaid paid holiday allowance (excluding the Workers' Day portion). As its grounds, the lower court held that the full-attendance allowance and paid holiday allowance (excluding the Workers' Day portion) are "agreed allowances" whose payment is determined by agreement between labor and management, and that the agreement in the collective bargaining agreements and wage agreements in this case, providing that the amount thereof be calculated based on the agreed daily wage amount, is valid.
Examining the reasoning of the lower court judgment in light of the relevant legal principles, there is no error in the lower court's determination, such as a misapprehension of the legal principles concerning the full-attendance allowance and paid holiday allowance or a departure from the limits of free evaluation of evidence in violation of the rules of logic and experience, as argued in the grounds of appeal.
4. Judgment on the Plaintiffs' ground of appeal concerning the excess full-attendance allowance
The lower court rejected the claims of the Plaintiffs and the Selected Parties seeking the difference in the excess full-attendance allowance. Examining the reasoning of the lower court judgment in light of the relevant legal principles and the record, there is no error in the lower court's determination, such as a misapprehension of the relevant legal principles that affected the judgment, as argued in the grounds of appeal.
5. Judgment on the Plaintiffs' ground of appeal concerning the additional retirement allowance
The lower court rejected the claims of the Plaintiffs and the Selected Parties seeking the difference in the additional retirement allowance. As its grounds, the lower court held that the additional retirement allowance paid by the Defendant to the Plaintiffs and the Selected Parties has the nature of an agreed retirement allowance whose payment is determined by agreement between labor and management, and that even if the agreed retirement allowance is calculated based on an amount different from the average wage under the Labor Standards Act, this cannot be regarded as void for violating a mandatory statutory provision.
Examining the reasoning of the lower court judgment in light of the relevant legal principles, there is no error in the lower court's determination in misapprehending the legal principles concerning retirement allowances, as argued in the grounds of appeal.
6. Judgment on the Defendant's ground of appeal concerning the comprehensive wage agreement
The lower court determined that it is difficult to recognize an agreement on a comprehensive wage system merely from the fact that there was a prior agreement in the wage agreements in this case regarding working hours exceeding the prescribed working hours, etc.
Examining the reasoning of the lower court judgment in light of the relevant legal principles, there is no error in the lower court's determination, such as a misapprehension of the legal principles concerning the formation of an agreement on a comprehensive wage system or a departure from the limits of free evaluation of evidence in violation of the rules of logic and experience, as argued in the grounds of appeal.
7. Judgment on the Defendant's ground of appeal concerning the calculation of unpaid allowances
The lower court (①) calculated the unpaid allowance by reducing the ordinary wage during the probationary period of Selected Party 15 pursuant to the 2008 wage agreement, and (②) calculated the unpaid allowance on the premise that each amount already paid, as stated in Attachments 3-1 through 3-17 to the lower court judgment, had been paid in relation to the overtime allowance, etc.
Among the grounds of appeal, the argument disputing the factual findings underlying the lower court's determination is in substance nothing more than a dispute over the selection of evidence and the assessment of its probative value, which falls within the free evaluation of the fact-finding court. Examining the reasoning of the lower court judgment in light of the lawfully adopted evidence, there is no error in the lower court's determination, such as a departure from the limits of free evaluation of evidence in violation of the rules of logic and experience, or a failure to conduct the necessary deliberation due to a misapprehension of the relevant legal principles, as argued in the grounds of appeal.
8. Judgment on the Defendant's ground of appeal concerning the calculation of the retirement allowance
A. The additional retirement allowance payment agreement
The lower court determined that the Defendant is obligated to pay to the Plaintiffs and the remaining Selected Parties, excluding Selected Party 14, the balance remaining after deducting, from (①) the retirement allowance calculated according to the recalculated average wage—which was recalculated by adding, to the overtime allowance and other allowances calculated based on the hourly ordinary wage that was calculated by including the driving allowance and other items constituting ordinary wages, the meal allowance and part of the CCTV allowance—(②) (㉮) the retirement allowance calculated based on the average wage obtained by dividing the sum of each allowance paid during the three months prior to retirement, calculated based on the agreed basic hourly wage, and the monthly basic pay, by the number of days in the said three months, and (㉯) the additional retirement allowance under the collective bargaining agreements in this case, respectively.
Meanwhile, in calculating the specific amount of the difference, the lower court calculated the sum, for the three months prior to retirement, of the overtime allowance and other allowances that must additionally be paid to the Plaintiffs and the remaining Selected Parties, excluding Selected Party 14, as a result of the recalculation of the hourly ordinary wage (hereinafter “the wage difference amount”), together with the meal allowance and part of the CCTV allowance, divided this sum by the number of days in the said three months to calculate the "difference in daily average wage," and then calculated the amount by multiplying this figure by 30 days' worth and by the number of years of continuous service; as a result, the lower court partially upheld this part of the claims of the Plaintiffs and the remaining Selected Parties, excluding Selected Party 14.
However, according to this method of calculation employed by the lower court, the result is that the additional retirement allowance under the collective bargaining agreements in this case, which should be deducted according to the standard set forth above, is not deducted. Accordingly, the lower court's determination upholding the claims of the Plaintiffs and the remaining Selected Parties, excluding Selected Party 14, for the difference in retirement allowance without taking into account at all the additional retirement allowance already paid, contains an error of contradictory reasoning that affected the judgment, or an error of misapprehending the legal principles concerning the calculation of retirement allowances. The ground of appeal pointing this out is well-founded.
B. Calculation of the wage difference amount used as the basis for calculating the retirement allowance
According to the reasoning of the lower court judgment and the record, the allowances for which the difference between the amount properly payable, calculated based on the newly calculated ordinary wage, and the amount already paid must be calculated are limited to the overtime allowance, night work allowance, weekly holiday allowance, and paid holiday allowance (excluding the Workers' Day portion). Accordingly, in calculating the wage difference amount for the purpose of calculating the specific difference in the unpaid retirement allowance as well, only the difference in the overtime allowance, night work allowance, weekly holiday allowance, and paid holiday allowance (excluding the Workers' Day portion) should be taken into account.
Nevertheless, in calculating the wage difference amount, the lower court included even the difference in unpaid basic pay and the difference in the full-attendance allowance asserted by the Plaintiffs and the Selected Parties, and on this basis calculated an excessive amount of unpaid retirement allowance. The lower court's determination contains an error in misapprehending the legal principles concerning the calculation of retirement allowances or in failing to conduct the necessary deliberation. The ground of appeal pointing this out is well-founded.
9. Scope of reversal
Among the parts of the lower court judgment in which the Plaintiffs and the Selected Parties lost, the parts other than the claims for the full-attendance allowance, paid holiday allowance (excluding the Workers' Day portion), excess full-attendance allowance, and additional retirement allowance, and, among the parts in which the Defendant lost, the part concerning the claim of the Plaintiffs and the Selected Parties for retirement allowance, contain the grounds for reversal set forth above. Furthermore, since the Defendant, in appealing the entirety of the part of the lower court judgment in which it lost, disputes that the claims of the Plaintiffs and the Selected Parties seeking payment of additional allowances calculated by including the bonus in ordinary wages violate the principle of good faith, and since this defense needs to be examined and determined together with the part of the Plaintiffs' and Selected Parties' claims that is being reversed for the reasons set forth above, the entirety of the part of the lower court judgment in which the Defendant lost is reversed together.
10. Conclusion
Without examining the remaining grounds of appeal, the part of the lower court judgment, excluding the claims of the Plaintiffs and the Selected Parties for the full-attendance allowance, paid holiday allowance (excluding the Workers' Day portion), excess full-attendance allowance, and additional retirement allowance, is reversed, and this part of the case is remanded to the court below for further deliberation and judgment; the remaining appeal of the Plaintiffs is dismissed in its entirety. It is so decided by the unanimous opinion of the Justices as set forth in the Order.
[[Attachment] List of Selected Parties: Omitted]
Justice Lee Dong-won (Presiding Justice), Kim Jae-hyung (Justice in charge), Min Yu-sook, Noh Tae-ak