[Plaintiffs, Appellees] Plaintiff 1 and 8 others (Attorneys for the plaintiffs: Woori Law LLC, Attorney Kim Geon-u and 3 others)
[Defendants, Appellants] Jongno-gu, Seoul Metropolitan Government and 4 others (Attorneys for the defendants: Government Legal Service and 1 other)
[Judgment Below] Seoul Central District Court Decision 2017Na54229 rendered on February 21, 2019
[Order]
The part of the judgment below against which the Defendants lost is reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The address of Plaintiff 1 in the party description of the judgment below, "Seodaemun-gu, Seoul (address before correction omitted)," is corrected to "Seodaemun-gu, Seoul (address after correction omitted)."
[Reasoning]
The grounds of appeal are examined.
1. Regarding Commuting Allowance and Safety Training Allowance
The court below determined, for the reasons stated in its judgment, that the commuting allowance and safety training allowance constitute ordinary wages possessing regularity, uniformity, and fixedness, as they are paid to employees in consideration for prescribed work.
Upon examination in light of the relevant legal principles and the record, the above determination of the court below is acceptable, and there is no error therein, such as a misunderstanding of the legal principles concerning the concept, requirements, and scope of ordinary wages, or incomplete deliberation, that affected the judgment, as alleged in the grounds of appeal.
2. Regarding the Year-End Allowance, Diligence Allowance, Physical Fitness Allowance, and Holiday Bonus
A. Wages that are paid only upon satisfaction of a certain number of working days are paid only when an additional condition—satisfaction of a certain number of working days—is fulfilled, in addition to the provision of prescribed work, and since whether such a condition is fulfilled is an uncertain condition that cannot be determined at the time extended, night, or holiday work is provided on any given day, such wages cannot be deemed to possess fixedness (see Supreme Court en banc Decision 2012Da89399 rendered on December 18, 2013, etc.).
A collective agreement is an agreement concluded between a labor union and an employer or an employers' association concerning working conditions and other matters arising in labor-management relations. Where a labor union concludes a collective agreement with the employer's side that retroactively consents to or approves the criteria for determining existing working conditions, such as wages, working hours, and retirement allowances, the effect of such consent or approval arises only with respect to union members or employees who are working at the business after the collective agreement takes effect and who will be subject to the agreement, and there is no room for such effect to arise with respect to employees who had already retired before the conclusion of the collective agreement. This is no different even where the working conditions are changed in a manner favorable to the employees (see Supreme Court Decision 98Da13747 rendered on June 9, 2000).
B. 1) The court below determined that, although the Defendants imposed a condition of "non-payment upon attendance rate below 50%" with respect to the payment of the year-end allowance, diligence allowance, and physical fitness allowance (hereinafter collectively referred to as "the allowances at issue in this case"), the fixedness of the allowances at issue in this case could not be denied, on the grounds, among others, that since official leave, annual leave, etc. were not taken into account in calculating the attendance rate, it appeared that employees who failed to achieve an attendance rate of 50% would be extremely exceptional, and it was also unknown whether there actually existed any employee who failed to receive the allowances at issue in this case due to failing to achieve a 50% attendance rate.
Furthermore, the court below determined that, since a collective agreement concluded on September 2, 2014 provided that, with respect to the holiday bonus, 50% of the holiday bonus would be paid even to those with an attendance rate below 50%, while retroactively applying the said agreement from January 1, 2014, 50% of the holiday bonus from January 2014 onward constitutes ordinary wages.
2) However, the above determination of the court below is difficult to accept as it stands, for the following reasons.
A) According to the reasoning of the judgment below and the record, the following facts may be found.
(1) Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4, Plaintiff 5, and the deceased Nonparty (hereinafter collectively referred to as "the environmental sanitation workers in this case") were members belonging to the Seoul Metropolitan Government Workers' Union (hereinafter referred to as "the union in this case").
(2) According to the "2011 Environmental Sanitation Worker Wage Payment Standards" concluded between the Mayor of Seoul, who was delegated authority by the heads of the 25 autonomous district offices (gu) of Seoul, and the union in this case, the allowances at issue in this case and the holiday bonus were paid to the environmental sanitation workers belonging to the Defendants regardless of the attendance rate.
(3) Thereafter, the "2012 Environmental Sanitation Worker Wage Payment Standards" concluded between the Mayor of Seoul and the union in this case provided that the allowances at issue in this case and the holiday bonus would not be paid where the attendance rate was below 50%, and the "2013 Environmental Sanitation Worker Wage Payment Standards" retained the same content.
(4) The "2014 Environmental Sanitation Worker Wage Payment Standards" concluded between the Mayor of Seoul and the union in this case on September 2, 2014 provided that the allowances at issue in this case would not be paid where the attendance rate was below 50%, but half of the holiday bonus would be paid even where the attendance rate was below 50%. The Mayor of Seoul and the union in this case agreed to apply the said standards from January 1, 2014 to employees who were in service as of January 1, 2014.
(5) The environmental sanitation workers in this case retired between December 31, 2012 and August 28, 2014.
(6) The Plaintiffs are claiming payment of the difference between the holiday work allowance, annual leave allowance, overtime work allowance, and night work allowance calculated based on the ordinary wages newly calculated including the allowances at issue in this case and the holiday bonus, and the amounts of the said allowances already paid.
B) In light of the process by which the content of the "Environmental Sanitation Worker Wage Payment Standards" was changed as described above, a condition requiring satisfaction of a certain number of working days was added with respect to the payment of the allowances at issue in this case and the holiday bonus in the "2012 Environmental Sanitation Worker Wage Payment Standards," and, absent special circumstances showing that such condition was merely a formality or that a different labor practice existed, it is reasonable to view that the allowances at issue in this case and the holiday bonus came to lack fixedness at least from the time the "2012 Environmental Sanitation Worker Wage Payment Standards" was established. Furthermore, the "2014 Environmental Sanitation Worker Wage Payment Standards" concluded on September 2, 2014 does not apply to the environmental sanitation workers in this case who retired before August 28, 2014.
C. Nevertheless, the court below determined, for the reasons stated in its judgment, that the allowances at issue in this case and 50% of the holiday bonus from January 2014 onward constitute ordinary wages. This determination of the court below contains an error, such as a misunderstanding of the legal principles concerning the fixedness of ordinary wages and the effect of collective agreements, which affected the judgment. The ground of appeal pointing this out is with merit.
D. Meanwhile, since wages or retirement allowances for which the right to claim payment has already specifically arisen have been transferred to the private property domain of the employee and are left to the employee's disposal, a labor union cannot, by a collective agreement with the employer alone, dispose of such rights by way of waiver or deferral of payment, unless it has obtained individual consent or authorization from the employees (see Supreme Court Decision 99Da67536 rendered on September 29, 2000; Supreme Court Decision 2009Da76317 rendered on January 28, 2010, etc.). It is pointed out that the court below, upon remand, needs to examine and determine whether applying retroactively to January 1, 2012 the portion of the "2012 Environmental Sanitation Worker Wage Payment Standards" established on December 31, 2012 that added a condition requiring satisfaction of a certain number of working days with respect to the payment of the allowances at issue in this case and the holiday bonus, would amount to retroactively extinguishing part of the holiday work allowance, annual leave allowance, overtime work allowance, and night work allowance, for which the right to claim payment had already specifically arisen on the premise that the allowances at issue in this case and the holiday bonus constituted ordinary wages under the previous standards.
3. Regarding the Assertion of Violation of the Principle of Good Faith
The court below, for the reasons stated in its judgment, rejected the Defendants' assertion that the Plaintiffs' claims should not be accepted as they violate the principle of good faith.
Upon examination in light of the relevant legal principles and the record, the above determination of the court below is acceptable, and there is no error therein, such as a misunderstanding of the legal principles concerning the good faith defense in ordinary wage litigation, or incomplete deliberation, that affected the judgment, as alleged in the grounds of appeal.
4. Conclusion
Therefore, without examining the remaining grounds of appeal, the part of the judgment below against which the Defendants lost is reversed, and this part of the case is remanded to the court below for further hearing and determination; and, since there is an obvious clerical error in the party description of the judgment below, it is hereby corrected. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating.
Justice Kim Seon-su (Presiding Justice), Kwon Sun-il, Lee Ki-taek (Justice in charge), Park Jeong-hwa