[Plaintiff (Selected Party), Appellee] Plaintiff (Attorneys Byun Young-cheol and 1 other, Counsel for the Plaintiff)
[Defendant, Appellant] ○○○ Co., Ltd. (Law Firm (LLC) Hwawoo, Attorneys Park Sang-hoon and 3 others, Counsel for the Defendant)
[Judgment Below] Busan High Court Decision 2012Na75, decided November 7, 2012
[Order]
The part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the Busan High Court.
[Reasoning] The grounds of appeal (including the statements in the briefs submitted after the expiration of the period for submitting the grounds of appeal, to the extent that they supplement the grounds of appeal) are examined.
1. Ordinary wages, which the Labor Standards Act (근로기준법) provides as the basis for calculating additional wages for extended, night, and holiday work, dismissal notice allowance, annual leave allowance, and the minimum amount of average wages, refer to money and valuables agreed to be paid as consideration for regular work (or, in the case of piece-rate workers, total work), which is the work ordinarily provided by an employee during prescribed working hours, and which is paid regularly, uniformly, and fixedly.
Fixed wages mean "the minimum wage that is naturally and definitely paid as consideration for one day's work to an employee who worked the prescribed working hours on any given day, even if that employee retires the following day, regardless of the name given to the wage." Therefore, if a wage is scheduled to be naturally paid, regardless of whether any additional conditions are fulfilled, once an employee provides prescribed work on any given day, and if the payment or the amount of payment is determined in advance, such wage may be considered to have fixedness.
However, wages that are set to be paid only to employees who are employed as of the payment date or another specific point in time, regardless of whether the employee actually performed prescribed work, have as a qualifying requirement for payment the condition of being employed at that specific point in time. Such wages are generally not paid to a person who provided work in the past but is not employed at the specific point in time, while they are generally paid to all persons employed at that specific point in time regardless of the content of work previously provided. If a wage is paid under such conditions, it is difficult to regard that wage as having the nature of consideration for so-called "prescribed work," and moreover, even if an employee provides work on any given day, if the employee retires before the specific point in time arrives, the employee will not receive that wage at all. Therefore, at the time an employee provides extended, night, or holiday work on any given day, whether the payment condition will be fulfilled is uncertain, and thus such wage should be regarded as lacking fixedness as well.
Furthermore, whether a certain wage has fixedness as consideration for prescribed work must be determined according to the content set forth in the labor contract, collective bargaining agreement, or rules of employment, etc., and where there is no express provision in the labor contract, etc., or where the content thereof 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).
2. According to the reasoning of the first instance judgment cited by the court below and the record, including the evidence lawfully adopted, the following facts can be known.
A. Article 50 of the collective bargaining agreement in this case (hereinafter "this collective bargaining agreement"), concluded between the Defendant and the labor union in this case as indicated in the judgment below, sets forth, under the heading "Bonus," certain wage payment standards and payment timing, etc. Paragraphs 1 and 2 provide that the Defendant shall pay to union members, at the end of each of February, April, May, June, August, October, and December, a "bonus" consisting of the ordinary wage plus the ordinary hourly wage for 30 hours (provided that, for those employed for less than one year, Paragraph 5 separately sets the payment rate divided by length of service). Separately from this, Paragraph 3 provides that a sum obtained by applying the annual wage increase rate and merit increase rate to the base amount (450,000 won) as of August 1, 2003, shall be paid as homecoming expenses (귀성비) for the Lunar New Year and Chuseok holidays (hereinafter "the homecoming expenses in this case"). Furthermore, Paragraph 6 provides that the "bonus" for a person who returns to work, takes a leave of absence, or retires before the "bonus" payment date shall be calculated and paid on a pro rata daily basis.
B. Accordingly, considering the annual wage increase rate, etc., the Defendant paid to employees who were employed at the time, as the homecoming expenses in this case, 490,000 won each for Chuseok 2004 and Lunar New Year 2005; 520,000 won each for Chuseok 2005, Lunar New Year 2006, and Chuseok 2006; 535,600 won for Lunar New Year 2007; 565,600 won each for Chuseok 2007 and Lunar New Year 2008; and 567,900 won each for Chuseok 2008, Lunar New Year 2009, and Chuseok 2009.
C. However, even upon examining the record of the court below, there is no material found to establish that the Defendant paid the homecoming expenses in this case to employees who retired before each relevant payment date of the homecoming expenses in this case.
3. In light of these facts, although Article 50, Paragraph 6 of this collective bargaining agreement provides that a "bonus" shall be paid pro rata according to the number of days worked to an employee who retires before the payment date of the "bonus," in light of the overall content of the provisions of this collective bargaining agreement, and considering that each paragraph of Article 50 of this collective bargaining agreement separately provides for the "bonus" and the homecoming expenses in this case, using different terms for each, it is insufficient to conclude that the homecoming expenses in this case are included within the "bonus" under the above provision. Moreover, it is also insufficient to find that there was an actual practice or custom of paying the homecoming expenses in this case to employees who had actually retired.
Therefore, there is sufficient room to view that, unlike the other "bonuses" set forth in the same article, employees who retired before the payment date were not subject to payment in the case of the homecoming expenses in this case, and if the actual circumstances are as such, then in light of the legal principles set forth above, the homecoming expenses in this case are difficult to regard as fixed wages, and thus cannot be considered to be included in ordinary wages.
4. Nevertheless, contrary to the foregoing, the court below, without specifically examining and determining whether the homecoming expenses in this case could indeed be included within the scope of application of Article 50, Paragraph 6 of this collective bargaining agreement, and whether there was a labor-management agreement or practice regarding payment of the homecoming expenses in this case to employees who retired before the payment date, determined that the homecoming expenses in this case constituted ordinary wages solely on the grounds, as stated in its reasoning, that the homecoming expenses in this case were not a matter of gratuitous consideration and were paid to all employees who satisfied the employment-related requirement.
Ultimately, the determination of the court below contains an error affecting the judgment by misunderstanding the legal principles concerning ordinary wages and the fixedness of wages, and by failing to conduct the necessary examination. The argument in the grounds of appeal pointing this out is well-founded.
5. 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 Judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the adjudication.
[Attachment: List of Selected Parties: Omitted]
Justices Shin Young-cheol (Presiding Justice), Lee Sang-hoon, Kim Yong-deok (Justice in Charge), Kim So-young