[Plaintiffs, Appellants and Appellees] As listed in Attached List 1 of Plaintiffs. (Plaintiff 1 and 63 others) (Attorneys of Law Firm Yeoneun, Kim Du-hyun and 3 others, for the plaintiffs)
[Plaintiffs, Appellees] As listed in Attached List 2 of Plaintiffs. (Plaintiff 5 and 5 others)
[Defendants, Appellees and Appellants] Tongyeong Traffic Co., Ltd. and 1 other (Attorney Choi Jin-gap of Law Firm Gukje, for the defendants)
[Lower Court Judgment] Busan High Court Judgment (Changwon) 2015Na1058, 1065, decided January 14, 2016
[Order]
Among the portions of the lower court judgment against the Plaintiffs listed in Attached List 1 that were decided against them, the portion excluding the claims for allowances for summer paid leave days filed by the remaining plaintiffs listed in Attached List 1 (excluding Plaintiff 15-A, Plaintiff 15-B, and Plaintiff 15-C, the successors to the lawsuit of the deceased Nonparty, and Plaintiff 54) is reversed, and this part of the case is remanded to the Busan High Court. The remaining appeals of the remaining plaintiffs listed in Attached List 1 (excluding Plaintiff 15-A, Plaintiff 15-B, and Plaintiff 15-C, the successors to the lawsuit of the deceased Nonparty, and Plaintiff 54), and all appeals of the Defendants, are dismissed. Of the costs of the appeal, the portion arising between Plaintiff 5 and Defendant Busan Traffic Co., Ltd. shall be borne by Defendant Busan Traffic Co., Ltd., and the portion arising between Plaintiffs 11, 30, 40, 50, and 57 and Defendant Tongyeong Traffic Co., Ltd. shall be borne by Defendant Tongyeong Traffic Co., Ltd.
[Reasoning]
1. Determination on the grounds of appeal by the Plaintiffs listed in Attached List 1 (hereinafter, in this Section 1, referred to as "the Plaintiffs")
A. First Ground of Appeal
1) Ordinary wages, which the Labor Standards Act (근로기준법) provides as the standard for calculating additional wages for extended, night, and holiday work, refer to money and valuables that are agreed to be paid as consideration for the prescribed work that an employee ordinarily provides during prescribed working hours, and which are paid regularly, uniformly, and fixedly. Here, a fixed wage means, regardless of its name, the minimum wage that is naturally and definitely paid as consideration for a day's work to an employee who worked the prescribed working hours on a given day, even if that employee were to retire the next day. Therefore, a wage whose payment or amount is predetermined such that it is naturally expected to be paid, regardless of whether additional conditions such as performance or results are satisfied, once an employee provides the prescribed work on a given day, may be considered to have fixedness (see Supreme Court en banc Decision 2012Da89399, decided December 18, 2013, etc.).
Even if a collective agreement or rules of employment, etc. provide grounds for restricting the payment of a specific wage to employees on leave of absence, employees returning to work, or employees subject to disciplinary action, this merely restricts the payment of such wage in consideration of the individual circumstances of the relevant employee. Therefore, such circumstance alone cannot be used to conclude that the wage does not constitute a fixed wage with respect to an employee maintaining a normal employment relationship.
2) According to the reasoning of the lower court judgment and the record, the following facts can be ascertained: the Defendants, since introducing an incentive to encourage courteous conduct toward passengers by bus drivers, have paid, every month, an amount proportional to the number of days worked, under the name of "personnel expense" (인사비), etc.; the Defendants have established regulations setting forth evaluation items for courteous service, such as failure to greet or discourteous conduct, and providing that, depending on the number of violations detected, disciplinary measures such as suspension of payment of the personnel expense, activation of CCTV, or dismissal may be imposed, as well as regulations concerning pardon; and there is in fact no case in which the personnel expense was not paid to an employee due to the Defendants' evaluation or detection of violations.
Examining these factual circumstances in light of the legal principles set forth above, the personnel expense is merely restricted in its payment as a disciplinary matter in consideration of the individual circumstances of the relevant employee, such as failure to perform courteous service, and otherwise constitutes a fixed wage—and thus an ordinary wage—in that, so long as an employee maintaining a normal employment relationship provides the prescribed work on a given day, it is determined that a fixed amount will be paid as consideration for that day's work regardless of whether additional conditions such as work performance or results are satisfied.
3) Nevertheless, the lower court determined, for the reasons stated in its judgment, that the personnel expense does not constitute an ordinary wage on the ground that it is paid only when additional conditions beyond the provision of prescribed work, such as performance of courteous conduct, are satisfied, and that whether it is paid and the amount paid may change at any time. This determination by the lower court is erroneous in that it misapprehended the legal principles concerning ordinary wages.
However, among the various allowances for which payment is sought by the Plaintiffs in this case, the allowance for summer paid leave days sought by the remaining plaintiffs (hereinafter referred to as "Plaintiff 1 et al."), excluding Plaintiff 15-A, Plaintiff 15-B, and Plaintiff 15-C, the successors to the lawsuit of the deceased Nonparty, and Plaintiff 54, is an allowance for which no standard is set under the Labor Standards Act, and thus is not an allowance to be calculated based on ordinary wages including the personnel expense (see Supreme Court Decision 2006Da81523, decided November 29, 2007, etc.). Ultimately, although the lower court judgment contains the error described above, the lower court's determination, which did not take the personnel expense into account when calculating the unpaid amount in relation to the claim for allowance for summer paid leave days of Plaintiff 1 et al., is correct in its conclusion, and therefore this part of the lower court's determination contains no error that affected the judgment.
Accordingly, this ground of appeal is well-founded to the extent described above.
B. Second Ground of Appeal
1) Under Article 56 of the former Labor Standards Act (before amendment by Act No. 15513, March 20, 2018), holiday work for which an additional 50% or more of the ordinary wage must be paid as a holiday work allowance includes not only work on the weekly rest day set forth in Article 55 of the same Act, but also work on a day designated as a holiday by a collective agreement, rules of employment, etc. (see Supreme Court Decision 90Da14089, decided May 14, 1991). Whether a day was designated as a holiday must be determined by comprehensively considering the wording of the holiday-related provisions in the collective agreement or rules of employment, etc., the circumstances leading to the establishment of such provisions, the regulatory system and practice regarding working hours at the relevant workplace, and, where work was actually provided, the name and amount of the wages actually paid and the method of calculating such amount.
2) According to the reasoning of the lower court judgment and the record, the following circumstances can be ascertained.
A) In the 2010 and 2014 wage reference tables (급여조견표) applicable to the Plaintiffs, in addition to the "extended work" and "night work" allowance items, there is a separately listed "holiday" item, and for each allowance item, the amount of the allowance paid according to the number of days worked per month is stated based on an hourly wage calculated using 15 days as the standard number of monthly working days.
Further, the holiday allowance column of each of the above wage reference tables states that, for each day worked in excess of 15 days per month, 50% of the base pay for 8 hours is to be added and paid.
B) The wage statements of Defendant Tongyeong Traffic Co., Ltd. also specify the holiday allowance separately from the extended work allowance and the night work allowance.
C) In fact, the Plaintiffs have been paid a holiday allowance equivalent to 50% of the base pay for 8 hours for each day worked in excess of 15 days (full-attendance days) per month.
D) No other special circumstances have been confirmed that would suggest that this holiday allowance, notwithstanding the above entries in each wage reference table and wage statement, was intended as an additional allowance for extended work.
E) Meanwhile, the Defendants have also paid, for work performed on days explicitly designated as paid holidays such as Lunar New Year's Day and Chuseok, an additional holiday work allowance only for 8 hours per day, in the same manner as this holiday allowance.
3) Examining these circumstances in light of the legal principles set forth above, it is reasonable to view that, at the Defendants' workplaces, days worked in excess of full attendance were designated as "holidays," and therefore the Plaintiffs' work on days worked in excess of full attendance must be regarded as holiday work for which an additional allowance must be paid under the Labor Standards Act (근로기준법).
Nevertheless, contrary to this, the lower court rejected the Plaintiffs' claim seeking payment of an additional holiday work allowance for the 7 hours in excess of 8 hours out of the 15 hours worked per day on days worked in excess of full attendance, premised on the view that days worked in excess of full attendance were holidays, on the grounds that it is difficult to find that there was an agreement between the Plaintiffs and the Defendants to designate days worked in excess of full attendance as holidays, and that there is significant room to interpret the holiday allowance paid for 8 hours out of the 15 hours worked per day on days worked in excess of full attendance under the wage reference table as an additional allowance for extended work. This lower court judgment is erroneous in that it misapprehended the legal principles concerning holiday work allowances under the Labor Standards Act, or failed to conduct the necessary examination and violated the rules of logic and experience, thereby exceeding the limits of the principle of free evaluation of evidence, and thereby affected the judgment.
2. Determination on the Defendants' Grounds of Appeal
A. First Ground of Appeal
The lower court determined, for the reasons stated in its judgment, that the agreements between the Defendants and the individual branch unions could not be recognized as effective.
Examining this in light of the relevant legal principles and the record, the lower court's determination contains no error, as alleged in the ground of appeal, of misapprehending the legal principles concerning the effect of collective agreements, etc., that affected the judgment.
B. Second Ground of Appeal
The lower court determined, for the reasons stated in its judgment, that the daily allowance (driving expenses) paid by the Defendants constitutes an ordinary wage.
Examining this in light of the relevant legal principles and the record, the lower court's determination contains no error, as alleged in the ground of appeal, of misapprehending the legal principles concerning ordinary wages that affected the judgment.
C. Third Ground of Appeal
The lower court determined that it is difficult to find that there was an agreement between the Plaintiffs and the Defendants regarding a comprehensive wage system (포괄임금제), citing circumstances such as the fact that the collective agreement in this case, etc. clearly distinguishes between base pay and various allowances, and separately provides for allowances for extended work or holiday work, among other circumstances stated in its judgment.
Examining this in light of the relevant legal principles and the record, the lower court's determination contains no error of violating the rules of logic and experience and thereby exceeding the limits of the principle of free evaluation of evidence, or of misapprehending the legal principles concerning agreements on the comprehensive wage system, that affected the judgment.
D. Fourth Ground of Appeal
The lower court determined, for the reasons stated in its judgment, that it is clear that the weekly rest day allowance paid by the Defendants to the Plaintiffs falls short of the standard for the weekly rest day allowance set forth in the Labor Standards Act, and therefore the Defendants must pay the Plaintiffs an additional weekly rest day allowance, and did not accept the Defendants' argument that there is no evidence to prove that the Plaintiffs attended without absence on their prescribed working days each week.
Examining this in light of the relevant legal principles and the record, the lower court's determination contains no error, as alleged in the ground of appeal, of violating the rules of logic and experience and thereby exceeding the limits of the principle of free evaluation of evidence, or of misapprehending the legal principles concerning the burden of proof, etc., that affected the judgment.
E. Fifth Ground of Appeal
The lower court determined that it is difficult to find that the Defendants agreed, through consultative councils with the heads of the affiliated labor union branches, not to pay separately, apart from the leave allowance, wages equivalent to one day of summer paid leave, citing the circumstances stated in its judgment.
Examining this in light of the relevant legal principles and the record, the lower court's determination contains no error of violating the rules of logic and experience and thereby exceeding the limits of the principle of free evaluation of evidence, or of failing to conduct the necessary examination, that affected the judgment.
3. Conclusion
Therefore, among the portions of the lower court judgment against the Plaintiffs listed in Attached List 1 that were decided against them, the portion excluding the claim for allowance for summer paid leave days of Plaintiff 1 et al. is reversed, and this part of the case is remanded to the court below for further examination and determination; the remaining appeals of Plaintiff 1 et al. and the appeals of the Defendants are without merit and are all dismissed; and of the costs of the appeal, the portion arising between Plaintiff 5 and Defendant Busan Traffic Co., Ltd. shall be borne by Defendant Busan Traffic Co., Ltd., and the portion arising between Plaintiffs 11, 30, 40, 50, and 57 and Defendant Tongyeong Traffic Co., Ltd. shall be borne by Defendant Tongyeong Traffic Co., Ltd. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
[Attached List 1: List of Plaintiffs — omitted]
[Attached List 2: List of Plaintiffs — omitted]
Justice Lee Ki-taek (Presiding Justice), Kwon Soon-il, Park Jung-hwa, Kim Seon-su (Justice in Charge)