[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 5 others
[Plaintiffs, Appellees] Plaintiff (Appellee) 1 and 43 others (Attorney-in-fact: Law Firm Sarang, in charge of Attorney Na Seok-ho)
[Defendant, Appellee and Appellant] ○○○ Co., Ltd. (Attorneys-in-fact: Attorney Han Sang-ho and 5 others)
[Judgment Below] Seoul High Court Decision 2003Na18854 rendered on June 3, 2004
[Order]
The part of the judgment below concerning Plaintiff 2's loss on the claims for unpaid statutory allowances and retirement pay is reversed, and this part of the case is remanded to the Seoul High Court. Plaintiff 2's remaining appeal and the appeals of Plaintiff 1, Plaintiff 3, Plaintiff 4, Plaintiff 5, Plaintiff 6, and the Defendant are all dismissed. Of the costs of the appeal, the portion arising between Plaintiff 1, Plaintiff 3, Plaintiff 4, Plaintiff 5, Plaintiff 6 and the Defendant shall be borne by each party respectively, and the portion arising between the plaintiffs listed in Attachment 2, Plaintiff List, and the Defendant shall be borne by the Defendant.
[Reasoning]
1. Judgment on the grounds of appeal by Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4, Plaintiff 5, and Plaintiff 6
A. The part concerning the claim for 1997 performance bonus
The court below, after comprehensively considering the adopted evidence and finding the facts as stated in its reasoning, held as follows regarding whether the Defendant Company had agreed, at the time of the labor-management agreement on the 1997 performance bonus, to pay 150% of the bonus base wage regardless of whether the production target was achieved: In light of the fact that the Defendant Company, in its agreements with the labor union, had paid performance bonuses by agreeing on payment rates based on the "achievement rate of the set production target" until 1999 (excluding 1998), and only in 2000 did it agree to pay a fixed performance bonus regardless of whether the production target was achieved, it should be viewed that the Defendant Company and the labor union agreed, until 1999, to pay performance bonuses on the premise that the production target set in the labor-management agreement would be achieved. Therefore, the mere fact that no specific production target was explicitly stated in the labor-management agreement on the 1997 performance bonus cannot lead to the conclusion that the Defendant Company agreed to pay the 1997 production-target-achievement performance bonus as a fixed amount regardless of whether the target was achieved; rather, it appears that, at minimum, achievement of at least 90% of the production target—which had been the minimum standard for payment of the target-achievement performance bonus through 1996—was presupposed. The court below further held that the evidence presented was insufficient to establish that 90% or more of the 1997 production target had been achieved, and that there was no other evidence to establish this, and on this basis rejected the plaintiffs' claim for the 1997 performance bonus.
Upon examination of the record, the fact-finding and judgment of the court below are justified and acceptable, and there is no illegality therein due to a mistake of fact in violation of the rules of evidence or a misunderstanding of the legal principles concerning target-achievement performance bonuses.
Furthermore, the court below's determination that, even if the Defendant Company were obligated to pay the above performance bonus to the above plaintiffs, the above plaintiffs' right to claim the performance bonus had been extinguished by the three-year prescription period under the Labor Standards Act (근로기준법), is merely a hypothetical and supplementary determination, and its propriety does not affect the conclusion of the judgment. Therefore, the ground of appeal on this point cannot be accepted.
B. The part concerning the exclusion of lunch expenses from average wages
The court below, after comprehensively considering the adopted evidence, found that the lunch expenses in this case were provided in kind, as stated in its reasoning, and then, on the ground that there was no evidence that the Defendant Company paid or was obligated to pay cash or other goods equivalent to meal expenses to employees who did not eat meals, determined that the said lunch expenses were provided for the welfare of employees and could not be viewed as wages constituting compensation for labor, and therefore were not included in the average wage that forms the basis for calculating retirement pay.
Upon examination of the record, the fact-finding and judgment of the court below are justified, and there is no illegality therein due to a mistake of fact in violation of the rules of evidence or a misunderstanding of the legal principles concerning the calculation of average wages.
The Supreme Court decision cited in the grounds of appeal involves facts different from this case and is inappropriate to invoke in this case.
C. The part concerning the exclusion of performance bonuses from average wages
If a bonus is paid continuously and regularly and the amount to be paid is fixed, it has the nature of wages paid as compensation for labor; however, if the occurrence of the cause for payment is uncertain and the payment is made only occasionally, it cannot be regarded as wages (see Supreme Court Decision 2001Da16722 rendered on June 11, 2002).
The court below determined that the target-achievement performance bonus, whose specific payment conditions are determined each year through labor-management agreement and whose payment or payment rate may vary depending on that year's production performance, cannot be viewed as having been paid continuously and regularly irrespective of production performance, and that the Defendant Company was not obligated to pay it; therefore, the above performance bonus could not be included in the average wage forming the basis for calculating the above plaintiffs' retirement pay.
Upon examination of the record and in light of the above legal principle, the judgment of the court below is justified, and there is no illegality therein due to a misunderstanding of the legal principles concerning the calculation of average wages with respect to performance bonuses as argued in the grounds of appeal.
D. The part concerning the exclusion of Plaintiff 2's high-heat work allowance from ordinary wages
(1) The disposition of the court below
The court below, after comprehensively considering the adopted evidence, found as follows: Pursuant to the Detailed Rules on Extreme Heat Season High-Heat Allowance (혹서기고열수당시행세칙) (effective from October 1, 1989), the Defendant Company, for the purpose of considering the difficulties of and improving the work efficiency of employees working in high-heat workplaces handling high-heat sources during the extreme heat season, limited to the Ulsan Plant, established four grades differentiated according to the intensity of the process (light work process, medium work process, heavy work process) and the temperature of the workplace, and set a monthly payment amount for each grade (at the time the above Detailed Rules were established, Grade A was 10,000 won, Grade B was 8,000 won, Grade C was 6,000 won, and Grade D was 5,000 won, but the payment amounts for each grade were subsequently changed; hereinafter referred to as the "high-heat grade"). Initially, this allowance was paid monthly from June to August each year, but pursuant to the supplementary agreement to the collective bargaining agreement concluded on August 24, 1995, the payment period was extended to April through September each year. The Defendant Company measured the temperature of the workplaces where each process was conducted in July and August of each year, determined the high-heat grade for each process, and used this as the standard for payment of the high-heat work allowance for the following year; rather than newly adjusting the high-heat grade to reflect the actual temperature changes from April to September of the relevant year, the Defendant Company paid the same amount of allowance to employees within the same process according to the high-heat grade determined based on the previous year's temperature measurement, but since the temperature of the workplace where each process was conducted changed from year to year, the amount of allowance receivable could differ from year to year. Where an employee working in a high-heat workplace worked in the high-heat workplace for only part of a month, the allowance was calculated on a pro rata daily basis; in the case of a support team member deployed when a vacancy arose in a high-heat workplace, the high-heat work allowance for that month was paid if the employee worked 50% or more of the working days of that month in the high-heat workplace, but the allowance was not paid if the employee worked less than 50%. An employee assigned to a certain process generally continued to work in the same process unless a reason such as transfer or leave of absence arose, or a vacancy temporarily arose and the work team leader adjusted the personnel assignment for each process, but where there was a change in the personnel engaged in high-heat workplace work, the relevant department was required to immediately notify the personnel department of this. Having found these facts, the court below determined that, since the Defendant Company set the grade of the high-heat workplace pursuant to the above Detailed Rules and paid the high-heat work allowance according to a certain standard to all employees working in that workplace for the same period, the allowance was paid regularly to all employees who met a certain standard; however, since there was no evidence to establish that the temperature of each high-heat workplace where the relevant employee worked was constant such that the same amount of high-heat work allowance could be received for each process every year, or that the relevant employee always and fixedly worked only in a high-heat workplace such that at least Grade D or higher high-heat work allowance could be received, or that the work process within the high-heat workplace was always the same, it could not ultimately be concluded that the high-heat work allowance was paid uniformly under fixed conditions; therefore, although the high-heat work allowance was paid continuously and regularly, it was not paid uniformly, and thus could not be regarded as ordinary wages.
(2) Judgment of the Supreme Court
Ordinary wages originally refer to wages that are determined to be paid regularly and uniformly for the amount or quality of the prescribed work, that is, general wages paid on a fixed and average basis regardless of actual working days or actually received wages. Here, being paid "uniformly" includes not only being paid to "all employees" but also being paid to "all employees 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 seeking to derive a "fixed and average wage," as the court below also stated in its reasoning (see Supreme Court Decision 92Da20316 rendered on May 27, 1993; Supreme Court Decision 93Da31979 rendered on May 24, 1994, etc.).
However, as also acknowledged by the court below, the high-heat work allowance in this case was paid at the same amount to employees within the same process according to the high-heat grade determined based on the previous year's temperature measurement, without newly adjusting the high-heat grade to reflect the actual temperature changes from April to September of the relevant year; furthermore, an employee assigned to a certain process generally continued to work in the same process unless a reason such as transfer or leave of absence arose, or a vacancy temporarily arose and the work team leader adjusted the personnel assignment for each process. Such conditions should be regarded as fixed conditions rather than temporary or fluctuating conditions. If so, the high-heat work allowance in this case should be regarded as included in ordinary wages, as it was paid regularly and uniformly every year in a fixed amount to all employees engaged in the process for which the high-heat work allowance was set to be paid, once a certain condition was met.
Meanwhile, according to the record, the high-heat work allowance is stated to be calculated on a pro rata basis according to the total number of days of the relevant month where an employee worked in the high-heat workplace for only part of a month due to transfer, intra-department movement, joining the company, leaving the company, leave of absence, reinstatement, suspension from duty, dispatch, etc.; however, this concerns the pro rata calculation applicable where a special reason such as transfer, joining, or leaving the company arises and the employee is engaged for only part of a month, and this provision alone cannot support the conclusion that the allowance was paid on a differential basis according to the employee's work performance and thus does not fall within ordinary wages. Furthermore, even if the high-heat grade is designated differently each year such that the amount receivable may differ, this is attributable to the determination, each year, of which high-heat grade's allowance will be paid for that year; once a certain high-heat grade is determined, the same amount is uniformly paid according to that grade to all employees working in the relevant process, and thus such circumstances alone cannot support the conclusion that the allowance does not fall within ordinary wages.
However, in the case of the support team, since the high-heat work allowance for the relevant month was paid only if the employee worked 50% or more of the working days of that month in the high-heat workplace, and was not paid if the employee worked less than 50%, there is room to view this as being paid according to work performance, and thus not falling within ordinary wages.
Therefore, the court below's determination, on the grounds stated in its reasoning, that the high-heat work allowance in this case does not fall within ordinary wages in all cases regardless of whether the employee belongs to the support team, constitutes an illegality that mistakenly found the facts due to a violation of the rules of evidence or insufficient deliberation, or that misunderstood the legal principles concerning ordinary wages, thereby affecting the judgment. The argument in the grounds of appeal pointing out this matter is well-founded.
2. Judgment on the grounds of appeal by the Defendant
A. The part concerning the inclusion of industrial safety and health expenses in ordinary wages
The court below's determination, after comprehensively considering the adopted evidence and finding the facts as stated in its reasoning, that since the industrial safety and health expenses are paid to all employees of the Defendant Company regularly, uniformly, and fixedly regardless of work performance pursuant to a labor-management agreement, they have the nature of ordinary wages as compensation for total labor, is justified, and there is no illegality therein due to a misunderstanding of the legal principles concerning ordinary wages as argued in the grounds of appeal.
B. The part concerning the inclusion of group individual pension insurance premiums in ordinary wages and average wages
The court below, after comprehensively considering the adopted evidence, found that the Defendant Company, upon concluding the 1997 collective bargaining agreement with the labor union on July 24, 1997, agreed to pay 20,000 won per month for 10 years as an individual pension for all employees; accordingly, in August of that year, it concluded a group individual pension contract with Kookmin Investment Trust Securities Co., Ltd. with all employees as the insured, and from that month until August 1998, paid a pension insurance premium of 20,000 won on behalf of the employees on each salary payment date; although, on August 23, 1998, after the plaintiffs had left the company, the labor and management agreed to suspend the premium payment for one year from September 1998, during the period the plaintiffs were employed, the Defendant Company paid this on their behalf and recorded the said pension insurance premium in the pay statement, and withheld earned income tax accordingly. Having found these facts, the court below determined that even though the amount is not actually paid directly to the employees and the effect of the payment does not arise immediately, since the employer, as described above, enrolled all employees as the insured in an individual pension insurance pursuant to a collective bargaining agreement and paid the entire premium on their behalf every month, and even withheld earned income tax, this has the nature of wages as compensation for labor; and since it also possesses all the conceptual indicia of ordinary wages, namely, being a regular, uniform, and fixed payment, the above pension insurance premium is also included in ordinary wages, and furthermore, since the group individual pension insurance premium must be included in ordinary wages, it is naturally also included in average wages.
Upon examination of the record, the judgment of the court below is justified, and there is no illegality therein due to a misunderstanding of the legal principles concerning the inclusion of amounts in ordinary wages and average wages as argued in the grounds of appeal.
C. The part concerning the inclusion of family allowance in average wages
If the company is obligated to pay the family allowance and it has been paid uniformly to employees who meet certain requirements, this is not a voluntary or gratuitous payment but has the nature of compensation for labor and thus falls within wages (see Supreme Court Decision 93Da26168 rendered on July 11, 1995; Supreme Court Decision 2000Da18127 rendered on May 31, 2002, etc.).
The court below's determination, in the same vein, that since the Defendant Company is obligated, pursuant to a labor-management agreement, to pay the family allowance, and it has been paid uniformly to employees who meet certain requirements, the allowance has the nature of compensation for labor and was thus properly included in the average wage forming the basis for calculating retirement pay, is justified, and there is no illegality therein due to a misunderstanding of the legal principles concerning the inclusion of amounts in average wages as argued in the grounds of appeal.
D. The part concerning the inclusion of vacation allowance and gift money in average wages
The total amount of wages forming the basis for calculating average wages includes all money and valuables paid by the employer to employees as compensation for labor, which are paid continuously and regularly to employees and for which the employer is obligated to pay pursuant to a collective bargaining agreement, employment rules, etc., regardless of their name; and even if paid in kind, money and valuables that have been paid as compensation for labor should reasonably be regarded as wages included in the calculation of average wages (see Supreme Court Decision 90Daka19647 rendered on December 7, 1990).
The court below's determination, after comprehensively considering the adopted evidence, finding that the Defendant Company paid 150,000 won each for Lunar New Year vacation allowance and Chuseok vacation allowance, and 250,000 won for summer vacation allowance, every year to all employees including the plaintiffs pursuant to the collective bargaining agreement, and that it set the gift money at approximately 200,000 won annually pursuant to a labor-management agreement and provided corresponding gifts in kind; and that the said vacation allowances and gift money were paid uniformly, continuously, and regularly pursuant to the collective bargaining agreement, labor-management agreement, and practice, such that their monthly average amount should be included in the average wage forming the basis for calculating retirement pay, is justified, and there is no illegality therein due to a misunderstanding of the legal principles concerning the inclusion of amounts in average wages as argued in the grounds of appeal.
3. Conclusion
Therefore, the part of the judgment below concerning Plaintiff 2's loss on the claims for unpaid statutory allowances and retirement pay is reversed, and this part of the case is remanded to the court below for further hearing and determination; Plaintiff 2's remaining appeal and the appeals of Plaintiff 1, Plaintiff 3, Plaintiff 4, Plaintiff 5, Plaintiff 6, and the Defendant are all dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Lee Gyu-hong (Presiding Justice), Lee Yong-woo, Park Jae-yun, Yang Seung-tae (Justice in charge)