[Plaintiffs, Appellants] As listed in the attached list of plaintiffs. (Attorney Kim Yeon-su for the plaintiffs)
[Defendant, Appellee] Hankook Tire Co., Ltd. (Attorneys Son Ji-yeol and 4 others for the defendant)
[Judgment Below] Daejeon High Court Decision 2014Na13806, 13844, 13868, 13820, 13851, 13882, 13875, 13813, 13837 dated January 14, 2016
[Order]
The portion of the judgment below concerning the losses of Plaintiff 2, Plaintiff 3, Plaintiff 8, Plaintiff 9, Plaintiff 10, Plaintiff 11, Plaintiff 12 (date of birth 1 omitted), Plaintiff 13, Plaintiff 14, Plaintiff 15, Plaintiff 17, Plaintiff 18, Plaintiff 19, Plaintiff 20 (date of birth 2 omitted), Plaintiff 21, Plaintiff 22, Plaintiff 23, Plaintiff 24, Plaintiff 25, Plaintiff 26, Plaintiff 28, Plaintiff 29, Plaintiff 30, Plaintiff 31, Plaintiff 32, Plaintiff 33, Plaintiff 34, and Plaintiff 35 is reversed, and this portion of the case is remanded to the Daejeon High Court. The appeals of Plaintiff 1, Plaintiff 4, Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 16, and Plaintiff 27 are all dismissed. The costs of appeal resulting from the appeals of Plaintiff 1, Plaintiff 4, Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 16, and Plaintiff 27 shall be borne by the said plaintiffs.
[Reasoning] The grounds for appeal are examined.
1. Regarding the regular bonus and holiday allowance
The court below determined that the regular bonus and holiday allowance paid by the Defendant, pursuant to each collective agreement in this case and the Defendant's salary regulations, etc., only to production/technical workers who remained employed as of the date of payment, lacked fixedness and therefore did not constitute ordinary wages (통상임금).
In light of the relevant legal principles and the record, there is no illegality in the judgment below, as alleged in the grounds for appeal, that misapprehended the legal principles regarding ordinary wages and thereby affected the judgment.
2. Regarding the 4/3-shift allowance
A. In order for a certain wage to fall under ordinary wages, it must possess the quality of being paid uniformly (일률적으로). 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 seeks 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 yardstick for determining whether a wage paid to all workers within a certain scope possesses uniformity, must be a condition related to the evaluation of the value of prescribed work, such as work content, skill, or experience (see Supreme Court en banc Decision 2012Da89399 dated December 18, 2013, etc.).
B. According to the reasoning of the judgment below and the record, the following facts can be ascertained.
1) The Defendant's production/technical workers are divided into the day shift and the rotating shift; in the case of the rotating shift, even without separate overtime work, workers work an average of 42 hours per week, resulting in 2 hours of overtime work per week.
2) Article 12, Item 2 of the Defendant's Rules of Employment provides that, in consideration of the 42-hour weekly work of shift workers, overtime allowance may be paid or, in lieu thereof, paid leave may be granted. In practice, the Defendant grants 13 days of paid leave (4/3-shift compensatory leave) each year to shift workers, and pays a 4/3-shift compensatory allowance for any unused 4/3-shift compensatory leave.
3) Meanwhile, separately from the above 4/3-shift compensatory leave and 4/3-shift compensatory allowance, the Defendant pays all shift workers an amount equivalent to three times the basic daily wage each month as the "4/3-shift allowance." The 4/3-shift allowance began to be paid around the year 2000, when the Defendant changed its employees' work pattern from a 3-group, 3-shift system to a 4-group, 3-shift system, in order to compensate shift workers for the portion of overtime allowance they had previously received but no longer received as a result of the change.
4) A worker who changed from shift work to day-shift work was paid the 4/3-shift allowance in proportion to the number of days worked on the shift.
5) Article 15 of the Defendant's Rules of Employment provides that, as a principle, on-site work by daily-wage employees in production/technical positions shall be performed under a shift system.
6) Plaintiff 2, Plaintiff 3, Plaintiff 8, Plaintiff 9, Plaintiff 10, Plaintiff 11, Plaintiff 12 (date of birth 1 omitted), Plaintiff 13, Plaintiff 14, Plaintiff 15, Plaintiff 17, Plaintiff 18, Plaintiff 19, Plaintiff 20 (date of birth 2 omitted), Plaintiff 21, Plaintiff 22, Plaintiff 23, Plaintiff 24, Plaintiff 25, Plaintiff 26, Plaintiff 28, Plaintiff 29, Plaintiff 30, Plaintiff 31, Plaintiff 32, Plaintiff 33, Plaintiff 34, and Plaintiff 35 (hereinafter referred to as "Plaintiff 2 et al.") received the 4/3-shift allowance during the period for which they claim each of the allowances at issue in this case. However, the remaining plaintiffs, excluding Plaintiff 2 et al., either were on the monthly salary system or belonged to the day shift, and thus did not receive the 4/3-shift allowance during the period for which they claim each of the allowances at issue in this case.
C. In light of these facts together with the following circumstances ascertainable from the record, and in light of the legal principles set forth above, it is reasonable to view that the 4/3-shift allowance possesses uniformity.
1) The mere fact that the allowance was introduced to compensate for the decrease in overtime allowance resulting from the change in work pattern does not warrant the conclusion that the 4/3-shift allowance is a wage paid irrespective of the evaluation of the value of the shift workers' prescribed work. Rather, in light of the payment standards, form of payment, and amount of the 4/3-shift allowance, it appears that, unlike the 4/3-shift compensatory leave or 4/3-shift compensatory allowance granted in relation to the shift workers' average weekly overtime of 2 hours, the 4/3-shift allowance was paid as compensation for the shift workers' prescribed work itself.
2) At the Defendant's place of business, shift work was, as a matter of principle, the norm for production/technical workers, and it appears that workers assigned to a shift continued to work on that shift unless their assignment was adjusted to the day shift. Therefore, shift work, which is the condition for payment of the 4/3-shift allowance, must be regarded as a fixed condition, not a temporary or fluctuating one.
D. Nevertheless, the court below determined, on grounds such as those stated in its judgment—namely, that payment varied depending on the non-fixed shift pattern and that the allowance could not be regarded as compensation for prescribed work—that the 4/3-shift allowance lacked uniformity and therefore did not constitute ordinary wages. This determination by the court below contains an illegality that misapprehended the legal principles regarding ordinary wages, etc., thereby affecting the judgment. The grounds for appeal pointing this out are well-founded.
3. Conclusion
Therefore, the portion of the judgment below concerning the losses of Plaintiff 2 et al. is reversed, and this portion of the case is remanded to the court below for further hearing and determination; the appeals of Plaintiff 1, Plaintiff 4, Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 16, and Plaintiff 27 are all dismissed, and the costs of appeal resulting from the appeals of the said plaintiffs shall be borne by the losing parties. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
[Attachment: List of Plaintiffs: omitted]
Justice Roh Jeong-hee (Presiding Justice), Kim So-young, Park Sang-ok (Justice in charge), Cho Jae-yeon