[Plaintiff, Appellee] Plaintiff 1 and 13 others (Attorney Park Hoon, counsel for the plaintiffs)
[Defendant, Appellant] Ilgwang Taxi Co., Ltd. (Yangheon Law Firm, Attorneys Lee Geon-ung and 1 other, counsel for the defendant)
[Judgment Below] Changwon District Court Decision 2015Na49 decided August 11, 2015
[Order]
The part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the Panel Division of the Changwon District Court.
[Reasoning] The grounds of appeal are examined.
1. As to the first ground of appeal
The court below determined, in light of the circumstances stated in its judgment, that the Plaintiffs' claim seeking payment of wages, etc., calculated on the basis of the collective agreement (단체협약) and the wage agreement (임금협정) in this case does not violate the principle of good faith (신의칙).
Upon examination in light of the relevant legal principles and the record, the above determination of the court below is justified, and there is no error therein, such as misunderstanding the legal principles concerning the validity of the collective agreement in this case, as alleged in the grounds of appeal.
2. As to the third ground of appeal
The court below determined that the extended work allowance and night work allowance in this case, being allowances paid on the premise of night work or work exceeding a certain period of time, constitute wages other than wages paid for prescribed working hours, and thus are not included in the comparison-target wage for the application of the minimum wage.
Upon examination in light of the relevant legal principles and the record, the above determination of the court below is justified, and there is no error therein, such as misunderstanding the legal principles concerning the calculation of the comparison-target wage for the application of the Minimum Wage Act (최저임금법), as alleged in the grounds of appeal.
3. As to the fourth ground of appeal
A. The portion concerning the extended work allowance and night work allowance
(1) Article 6(1) of the Minimum Wage Act (최저임금법) provides that "An employer shall pay wages not less than the minimum wage amount to workers subject to the minimum wage," and Article 6(4) of the same Act provides that (i) wages other than those paid regularly at least once a month, as determined by the Minister of Employment and Labor (Item 1), (ii) wages other than those paid for prescribed working hours or prescribed working days, as determined by the Minister of Employment and Labor (Item 2), and (iii) other wages that the Minister of Employment and Labor separately determines as inappropriate to include in the minimum wage amount (Item 3), shall not be included in the wages under paragraph (1). Accordingly, Article 2 [Attached Table 1] of the Enforcement Rule of the Minimum Wage Act (최저임금법 시행규칙) sets forth the scope of wages not to be included in the minimum wage. Therefore, whether the wages paid fall short of the minimum wage must be determined by comparing the minimum wage amount with the amount of wages excluding the wages or allowances set forth in Article 6(4) of the Minimum Wage Act and Article 2 [Attached Table 1] of the Enforcement Rule of the same Act (hereinafter referred to as the "comparison-target wage," being the wage used for the application of the minimum wage) among the wages paid (see Supreme Court Decision 2006Da64245, decided January 11, 2007). Meanwhile, the Labor Standards Act (근로기준법) provides for "ordinary wage" (통상임금) as the standard wage used to guarantee the minimum of the average wage, which may increase or decrease depending on actual working hours or work performance, and to calculate additional wages for extended, night, and holiday work, dismissal notice allowance, and annual leave allowance, etc.; such "ordinary wage" refers to fixed wages paid regularly and uniformly to a worker as consideration for prescribed work or total work (see Supreme Court en banc Decision 2012Da89399, decided December 18, 2013, etc.).
As such, since the minimum wage or the comparison-target wage for the application of the minimum wage is a separate concept from the ordinary wage, differing in function and method of calculation, the fact that an employer must pay wages not less than the minimum wage amount to workers subject to the minimum wage does not mean that the ordinary wage itself is bound by the minimum wage amount as its floor. However, where the total comparison-target wage for a worker subject to the minimum wage is less than the minimum wage amount, the total comparison-target wage must be increased to the minimum wage amount, and accordingly, the individual wages included in the comparison-target wage are also increased, such that the ordinary wage may be newly calculated based on those wages among the increased individual wages that constitute the ordinary wage.
(2) The court below determined, in light of the following circumstances, that with respect to the extended work allowance and night work allowance of the remaining Plaintiffs other than Plaintiff 4, Plaintiff 6, and Plaintiff 8 (hereinafter referred to as the "remaining Plaintiffs"), the amount to be paid should be calculated by multiplying the payment rate set forth in the wage agreement in this case, not by the hourly wage set forth in the wage agreement in this case, but by the hourly minimum wage amount set forth in the Minimum Wage Act.
(A) The Defendant agreed in the wage agreement in this case to pay the remaining Plaintiffs the extended work allowance and night work allowance calculated by multiplying the payment rate determined based on the hourly wage according to the number of working days.
(B) Under the Minimum Wage Act, the portion of a labor contract between a worker subject to the minimum wage and an employer that sets an amount as wages below the minimum wage amount shall be void, and in such case, the void portion shall be deemed to have agreed to pay wages equal to the minimum wage amount set forth in the Minimum Wage Act.
(C) Since the sum of the basic pay, weekly holiday allowance, and seniority allowance, among the details of wages paid by the Defendant to the remaining Plaintiffs, which are included in the comparison-target wage for the application of the minimum wage, falls short of the minimum wage amount, the Defendant is obligated to pay the remaining Plaintiffs the difference pursuant to the Minimum Wage Act.
(3) However, the above determination of the court below is difficult to accept as it stands.
Upon examination in light of the above legal principles and the record, the remaining Plaintiffs are seeking, through this lawsuit, payment of the difference between the extended work allowance and night work allowance calculated on the basis of the hourly minimum wage amount set forth in the Minimum Wage Act and the amounts of each of the above allowances actually paid, and among the basic pay, seniority allowance, and weekly holiday allowance which the court below determined to be included in the comparison-target wage for the application of the minimum wage, only the basic pay and seniority allowance appear to constitute the ordinary wage. If so, the court below should have, on the premise that as the total comparison-target wage for the application of the minimum wage is increased to the minimum wage amount pursuant to the Minimum Wage Act, the individual wages included in the comparison-target wage, namely the basic pay, seniority allowance, and weekly holiday allowance, are also increased, newly calculated the ordinary wage based on the basic pay and seniority allowance, which constitute the ordinary wage among the increased individual wages, and then ordered payment of the difference between the extended work allowance and night work allowance calculated based on the newly calculated ordinary wage and the amounts of each of the above allowances actually paid.
(4) Nevertheless, in calculating the extended work allowance and night work allowance to be paid by adding 50/100 of the ordinary wage, the court below determined, on the premise that where the ordinary wage is less than the minimum wage amount, the extended work allowance and night work allowance should be calculated directly based on the minimum wage amount, that the extended work allowance and night work allowance in this case should be calculated based on the hourly minimum wage amount set forth in the Minimum Wage Act, without following the above method. This judgment of the court below has an error affecting the judgment by failing to fulfill the necessary examination due to a misunderstanding of the legal principles concerning the relationship between the minimum wage and the ordinary wage. The ground of appeal pointing this out is well-founded.
B. The portion concerning the bonus
(1) The court below, after finding that Article 7 of the wage agreement in this case, concluded between the union branch in this case and the Defendant, provides that union members who have worked for one year or more shall be paid a bonus of 200% of the "average wage" (평균임금), divided and paid quarterly, determined, for the reasons stated in its judgment, that where the wages paid pursuant to the wage agreement in this case, with respect to the wages of the Plaintiffs subject to the Minimum Wage Act, fall short of the minimum wage amount, the "average wage," which is the standard for calculating the above bonus, should also be increased to the minimum wage amount.
(2) However, the above determination of the court below is difficult to accept for the following reasons.
(A) According to the record, although the wage agreement in this case provides for the payment of a bonus calculated on the basis of the "average wage" as above, it does not separately define the meaning of "average wage"; therefore, it must be reasonably interpreted in accordance with the rule of experience, so as to conform to the ideals of social justice and equity, comprehensively considering the content of the relevant wording, the motive and circumstances under which the wage agreement was concluded, practice, and the purpose that the labor union and the employer intended to achieve through the wage agreement and their genuine intent (see Supreme Court Decision 2014Da82026, decided October 27, 2016, etc.).
(B) Meanwhile, if the "average wage" under the wage agreement in this case refers to the statutory "average wage" prescribed by the Labor Standards Act (근로기준법), then, as seen above, its total amount would be increased due to the application of the Minimum Wage Act to the individual wage items constituting it; however, if it instead refers to an average amount calculated on the basis only of wages paid during a certain period as agreed between the parties, then, absent special circumstances, its total amount would remain unchanged regardless of whether the Minimum Wage Act applies to the individual wage items constituting it.
(C) Therefore, the court below should have examined whether the meaning of "average wage," which serves as the standard for calculating the bonus set forth in the wage agreement in this case, refers to the statutory "average wage," or to the average amount obtained by dividing the total amount of specific wages paid during a certain period as agreed upon by the wage agreement in this case by the total number of days in the calculation period, and then determined the propriety of the Plaintiffs' claim for unpaid bonus.
(3) Nevertheless, the court below, without properly examining this matter, determined that the "average wage" for calculating the bonus in this case should also be increased to the minimum wage amount. This judgment of the court below has an error of failing to fulfill the necessary examination due to a misunderstanding of the legal principles concerning the interpretation of the meaning of "average wage," etc.
4. Conclusion
Therefore, without examining the remaining grounds of appeal, the part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the court below for further examination and determination. This Decision is rendered as stated in the Order, with the unanimous consent of the Justices participating in the deliberation.
Justice Lee Ki-taek (Presiding Justice), Kim Chang-seok (Justice in charge), Kim Jae-hyung