[Plaintiff (Selected Party), Appellee]
[Defendant, Appellant] Korea Workers' Compensation and Welfare Service (근로복지공단)
[Defendant Assistant Intervenor, Appellant] Samsung Heavy Industries Co., Ltd.
[Judgment Below] Busan High Court Decision 2009Nu2818, decided August 9, 2010
[Order]
The appeal is dismissed. Of the costs of the appeal, the portion arising from the intervention shall be borne by the Defendant Assistant Intervenor, and the remainder shall be borne by the Defendant.
[Reasoning] The grounds of appeal are examined together.
1. As to Ground of Appeal No. 1
Money and valuables of any kind paid by an employer to an employee as consideration for labor, which are paid continuously and regularly to the employee, for which the employer bears an obligation to pay under a collective agreement, rules of employment, wage regulations, employment contract, labor practice, or the like, and which are paid uniformly to employees satisfying certain requirements, shall be deemed wages subject to the calculation of average wages regardless of their designation (see Supreme Court en banc Decision 97Da5015, decided May 12, 1999; Supreme Court en banc Decision 2002Da8025, decided October 17, 2002, etc.).
The court below's determination that the family allowance paid by the Defendant Assistant Intervenor company (hereinafter "the Intervenor company") to the selectors, who are employees, has the nature of consideration for labor and thus constitutes wages forming the basis for calculating average wages, is in accordance with the aforementioned legal principle and is justified. There is no error of law, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning wages forming the basis for the calculation of average wages.
2. As to Ground of Appeal No. 2
The court below, based on the evidence it adopted, found the following facts: that when the Intervenor company introduced the personal pension subsidy system in 1995, it agreed with the Labor Council to enroll all employees aged 20 or older but under 55 in personal pensions collectively; that thereafter, when some employees did not apply for or canceled their personal pensions, the Defendant did not pay the personal pension subsidy and initially restricted partial re-enrollment but subsequently permitted it through labor-management agreement; that currently more than 97% of employees receive the personal pension subsidy from the Defendant; that the Intervenor company has recorded the personal pension subsidy paid to employees as a fringe benefit on their pay statements; and that, aside from the change made by the Defendant after the 1995 introduction of the personal pension subsidy system in the standard amount to be paid from 3% of the standard monthly wage for National Pension purposes to 3% of the prior year's income standard, the payment amount and other terms have been maintained consistently. Based on these findings, the court below determined that once an employee applies to enroll in a personal pension, an obligation arises for the Intervenor company to deposit a fixed monthly amount into the designated personal pension account; that the personal pension subsidy is paid monthly by the Intervenor company on a regular and uniform basis; and that, since the payment standards for the personal pension subsidy are not changed unilaterally by the employer and it is difficult to regard the subsidy as money paid merely to reimburse actual expenses, it constitutes money continuously and regularly paid under an obligation imposed on the Intervenor company, and thus constitutes wages subject to the calculation of average wages.
In light of the relevant legal principles and the record, the determination of the court below is justified, and there is no error of law, as alleged in the grounds of appeal, in violation of the rules of evidence or in misunderstanding the legal principles concerning wages forming the basis for the calculation of average wages, or otherwise.
3. As to Ground of Appeal No. 3
Even if money or valuables paid by an employer to an employee as consideration for labor were paid in kind, if they have been paid as consideration for labor, it is proper to regard them as wages to be included in the calculation of average wages (see Supreme Court Decision 90Daka19647, decided December 7, 1990; Supreme Court Decision 2004Da41217, decided September 9, 2005, etc.).
The court below's determination that the gifts—worth approximately KRW 100,000 for the Lunar New Year holiday and approximately KRW 150,000 for the Chuseok holiday, which the Intervenor company has paid annually to all employees pursuant to the labor-management wage agreement of the year 2000—constitute wages forming the basis for the calculation of average wages, even though they were paid in kind, is in accordance with the aforementioned legal principle and is justified. There is no error of law, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning wages forming the basis for the calculation of average wages, or otherwise.
4. Conclusion
Therefore, the appeal is dismissed, and it is so ordered, with the unanimous concurrence of the participating Justices, that of the costs of the appeal, the portion arising from the intervention shall be borne by the Intervenor company, and the remainder shall be borne by the Defendant.
[Attachment: List of Selectors: Omitted]
Justices Min Il-young (Presiding Justice), Lee In-bok, Kim Neung-hwan (Justice in Charge)