[Plaintiffs, Appellee and Appellant] Plaintiff 1 and 2 others (Attorney at Law, Minju Law Firm, Attorney Seo Jeong-uk, as Counsel)
[Defendant, Appellant and Appellee] Korea Infrastructure Safety Corporation (Government Legal Service and 1 other, as Counsel)
[Judgment Below] Uijeongbu District Court Decision 2013Na51873 decided November 20, 2014
[Order]
The part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the Uijeongbu District Court. All appeals by the Plaintiffs are dismissed.
[Reasoning] The grounds of appeal are examined.
1. As to the Plaintiffs' grounds of appeal
A. Regarding the fixedness of the holiday bonus for national holidays (myeongjeol hyuga-bi)
1) Whether a certain wage has fixedness as consideration for prescribed work must be determined according to the contents set forth in the employment contract, collective agreement, or rules of employment, etc., and where there is no explicit provision in the employment contract, etc., or where its content is unclear, it must be determined by comprehensively considering objective circumstances such as the nature of the wage, the actual state of payment, and practice (see Supreme Court en banc Decision 2012Da94643 decided December 18, 2013). The court, taking into account the entirety of the pleadings and the results of the examination of evidence, determines whether factual allegations are true or not according to logic and the rules of experience, based on free evaluation of evidence, in accordance with the ideals of social justice and equity (Article 202 of the Civil Procedure Act [민사소송법]), and facts lawfully established by the judgment below within the limits of the principle of free evaluation of evidence bind the appellate court (Article 432 of the same Act).
2) The court below determined, for the reasons stated in its judgment, that the holiday bonus for national holidays at issue in this case is a wage lacking fixedness in that it requires, as a condition for payment, that the employee remain employed at the time of payment, and therefore is not included in ordinary wages.
3) The part of the grounds of appeal disputing the fact-finding underlying this determination by the court below is, in substance, nothing more than a challenge to the selection and evaluation of evidence, which properly belongs to the free evaluation of evidence by the fact-finding court. Furthermore, upon examining the reasoning of the judgment below in light of the aforementioned legal principles, the related legal principles set forth in the judgment below, and the evidence lawfully adopted, there is no error in the judgment below in misapprehending the legal principles concerning the fixedness of ordinary wages or in exceeding the limits of the principle of free evaluation of evidence.
B. Regarding the claims for the difference in household support allowance (gagye jiwonbi) and holiday bonus for national holidays
1) Where, in agreeing to pay an allowance for which the Labor Standards Act (근로기준법) sets no standard, the labor and management agree by mutual consent to use as the means of calculating such allowance an ordinary wage that differs in concept or scope from that defined under the Labor Standards Act, such agreement is valid, since there is no risk of undermining the purpose of the Labor Standards Act in requiring the payment of statutory allowances according to statutory standards (see Supreme Court Decision 2006Da81523 decided November 29, 2007, and others).
2) The court below determined, for the reasons stated in its judgment, that the Defendant's compensation regulations, which limit the scope of ordinary wages serving as the basis for calculating the household support allowance and holiday bonus for national holidays at issue in this case—allowances not falling under the statutory allowances prescribed by the Labor Standards Act—to the agreed ordinary wage set forth in the compensation regulations to which the Plaintiffs consented, as stated in the judgment below, are valid, and accordingly determined that the Plaintiffs' claims for the difference in the household support allowance and holiday bonus for national holidays at issue in this case, premised on a different basis, are without merit.
3) The grounds of appeal disputing the fact-finding concerning the agreement on ordinary wages underlying this determination by the court below are, in substance, nothing more than a challenge to the selection and evaluation of evidence, which properly belongs to the free evaluation of evidence by the fact-finding court. The determination of the court below is based on the aforementioned legal principles, and upon examining the reasoning of the judgment below in light of the evidence lawfully adopted, there is no error in the judgment below, such as exceeding the limits of the principle of free evaluation of evidence.
2. As to the Defendant's grounds of appeal concerning overtime allowance
A. Article 15, Paragraph 1 of the Labor Standards Act provides that "An employment contract that sets working conditions falling short of the standards prescribed by this Act shall be null and void only with respect to such part," and Paragraph 2 provides that "The part rendered null and void pursuant to Paragraph 1 shall be governed by the standards prescribed by this Act." These provisions are intended to substantially maintain minimum working conditions for employees by preventing, in order to achieve the purpose of the Labor Standards Act, an employee from being made to accept working conditions falling short of the standards prescribed by the Labor Standards Act under the guise of an individual agreement between labor and management. In light of the language and purpose of these provisions, an agreement between labor and management to exclude from ordinary wages an allowance that should be included in ordinary wages under the Labor Standards Act does not become wholly null and void; rather, it becomes null and void only with respect to the portion, when compared overall with the standards prescribed by the Labor Standards Act, that includes working conditions falling short of such standards (see Supreme Court Decision 2006Da81523 decided November 29, 2007, and others).
B. The court below determined, for the reasons stated in its judgment: ① that the Defendant's compensation regulations, which limit the scope of ordinary wages serving as the basis for calculating overtime allowance, set working conditions falling short of the standards prescribed by the Labor Standards Act and are therefore null and void, and accordingly that the Defendant must pay the Plaintiffs overtime allowance calculated on the basis of ordinary wages as defined by the Labor Standards Act, including the base pay, bonus, long-term service allowance, technical allowance, meal subsidy, transportation subsidy, winter subsidy, efficiency incentive allowance, and household support allowance; and then ② recalculated the overtime allowance according to the formula "statutory ordinary wage × 1.84/184 × overtime hours worked" for the period up to and including December 2010, and "statutory ordinary wage × 1.5/209 × overtime hours worked" for the period from and after January 2011, and determined that the Defendant must additionally pay the difference between the overtime allowance thus recalculated and the overtime allowance actually paid to the Plaintiffs.
C. Upon examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence lawfully adopted, ① the part of the judgment below determining that the Defendant's compensation regulations limiting the scope of ordinary wages serving as the basis for calculating overtime allowance are null and void, and that overtime allowance must therefore be calculated and paid on the basis of ordinary wages as defined by the Labor Standards Act, is justified; however, ② the part of the judgment premised on the view that overtime allowance for the period up to and including December 2010, calculated according to the standards prescribed by the Labor Standards Act, must follow the formula "statutory ordinary wage × 1.84/184 × overtime hours worked," cannot be accepted, for the following reasons.
1) According to the reasoning of the judgment below and the evidence lawfully adopted, the ratio "1.84/184" applied in the formula by which the court below recalculated the overtime allowance is based on the compensation regulations established by the Defendant, and among these figures, "1.84" reflects the purport that overtime allowance for extended work (yeonjang geunro) is to be paid with an addition of 84/100 of the ordinary wage.
2) However, Article 56 of the Labor Standards Act provides: "An employer shall pay not less than 50/100 of the ordinary wage in addition thereto for extended work."
3) If, in calculating overtime allowance for extended work according to the standards prescribed by the Labor Standards Act, the ordinary wage is determined in accordance with the Labor Standards Act while the addition rate (gasanyul) is determined in accordance with the compensation regulations rather than the Labor Standards Act, this would amount to allowing an individual comparison of the various elements comprising a single working condition, namely overtime allowance, in violation of the purpose of Article 15 of the Labor Standards Act.
4) In recalculating the overtime allowance for the period up to and including December 2010 according to the standards prescribed by the Labor Standards Act, the court below should have applied not only the scope of ordinary wages but also the addition rate of 50/100 as prescribed by the Labor Standards Act, calculating according to the formula "statutory ordinary wage × 1.5/184 × overtime hours worked."
D. Nevertheless, the court below determined otherwise, and therefore this part of the judgment below contains an error of misapprehending the legal principles concerning Article 15 of the Labor Standards Act, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.
3. Conclusion
Accordingly, without examining the Defendant's remaining grounds of appeal, the part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the court below for further hearing and determination; all appeals by the Plaintiffs are dismissed. This Judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the adjudication.
Justice Ahn Cheol-sang (Presiding Justice), Park Sang-ok, Noh Jeong-hee, Kim Sang-hwan (Justice in Charge)