[Plaintiff (Selected Party), Appellee] Plaintiff (Attorney Byun Tae-jong, Counsel for the Plaintiff)
[Defendant, Appellant Foundation] Postal Service Promotion Foundation (Attorneys Song Jin-hoon and 2 others of Yulchon LLC, Counsel for the Defendant)
[Judgment Below] Seoul High Court Decision 2005Na44765 rendered on January 12, 2006
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
We examine the grounds for appeal.
1. As to Grounds for Appeal Nos. 1 through 3
Under the Labor Standards Act (근로기준법), "wages" means "any money and valuables paid by an employer to a worker as remuneration for work, whatever the name of such payment may be, such as wages, salary, etc." (Article 18 of the Labor Standards Act). Under the current positive law, all wages, being remuneration for work, mean "compensation for work provided by a worker under the direction of an employer," and therefore there can be no such thing as a so-called livelihood-security wage that arises simply from a worker's status without presupposing the actual provision of work (see Supreme Court en banc Decision 94Da26721 rendered on December 21, 1995, etc.).
Furthermore, money and valuables paid to a worker as remuneration for prescribed work or total work, if paid regularly and uniformly, shall in principle all constitute wages falling under ordinary wages. However, in light of the legislative purpose of the Labor Standards Act and the function and necessity of ordinary wages, for any wage to qualify as an ordinary wage, it must be a fixed wage paid regularly and uniformly; accordingly, wages that are not paid regularly and uniformly, or whose payment or amount varies depending on actual work performance, and which are thus not fixed wages, do not constitute ordinary wages. Here, being paid "uniformly" includes not only payment to "all workers" but also payment to "all workers who meet a certain condition or standard," and the "certain condition" referred to here must be a "fixed condition," in light of the concept of ordinary wages, which is intended to calculate a "fixed and average wage" (see Supreme Court Decision 2003Da10650 rendered on April 22, 2003; Supreme Court Decision 2004Da41217 rendered on September 9, 2005, etc.).
In light of the foregoing legal principles and the record, the court below, having comprehensively considered the evidence adopted and found the facts as stated in its reasoning, determined that the filial piety memorial rite allowance (효도제례비), the year-end special communication incentive (연말특별소통장려금), and the commuting subsidy travel expenses (출퇴근보조여비) at issue in this case are all wages paid to workers regularly, uniformly, and as fixed compensation for work, and therefore constitute ordinary wages. This determination is justified and may be affirmed, and there is no illegality therein, as alleged in the grounds for appeal, such as misapprehension of facts due to violation of the rules of evidence, misapprehension of the legal principles concerning ordinary wages, misapprehension of the legal principles concerning the nature of a disposal document, omission of judgment, or insufficiency of reasoning.
2. As to Ground for Appeal No. 4
Ordinary wages serve to guarantee the minimum standard of average wages and also serve as the basis for calculating additional allowances for overtime, night, and holiday work as prescribed by the Labor Standards Act, as well as advance dismissal notice allowances, etc. Since no separate minimum standard other than the additional rate or number of days of payment is prescribed for each of the above allowances, if the validity of an agreement between labor and management to exclude from ordinary wages various allowances that should, by their nature, be included in ordinary wages were recognized, the purpose of the relevant provisions—namely, to require payment of additional allowances for overtime, night, and holiday work and to require payment to a dismissed worker of the wages ordinarily received for a certain period—would be defeated. Therefore, an agreement between labor and management to exclude from ordinary wages an allowance that should, by its nature, be included in ordinary wages under the Labor Standards Act is null and void as a contract stipulating working conditions that fall short of the standards set by the said Act under Article 22, Paragraph 1 of the same Act (see Supreme Court Decision 93Da5697 rendered on May 24, 1994, etc.).
In light of the foregoing legal principles and the record, the court below, having comprehensively considered the evidence adopted and found the facts as stated in its reasoning, determined that it is difficult to find that there was an agreement between labor and management to exclude the filial piety memorial rite allowance, the year-end special communication incentive, and the commuting subsidy travel expenses at issue in this case from ordinary wages (there is no wording in the collective agreement to the effect of excluding these from ordinary wages), and further determined that even if such an agreement existed, it would be null and void. This determination is justified and may be affirmed, and there is no illegality therein, as alleged in the grounds for appeal, such as misapprehension of the legal principles concerning the validity of an agreement between labor and management.
3. Therefore, the Defendant's appeal is dismissed, and the costs of the appeal are to be borne by the losing Defendant. It is so decided by the unanimous opinion of the Justices participating in this decision, as set forth in the Order.
Justice Kim Yong-dam (Presiding Justice), Park Si-hwan, Park Il-hwan (Justice in Charge), Kim Neung-hwan