[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 1 other (Attorneys of Law Firm Kukje, Park Kwon-byeong and 2 others, Counsel for the Plaintiffs)
[Defendant, Appellee and Appellant] Hanjin Shipping Co., Ltd. (Attorney of Law Firm Gwangjang, Yu Gyeong-hui, Counsel for the Defendant)
[Judgment Below] Busan High Court Decision 2001Na3658 rendered on December 19, 2001
[Order]
The part of the judgment below concerning the claim for retirement allowance is reversed, and that part of the case is remanded to the Busan High Court. The remainder of the Plaintiffs' appeal is dismissed.
[Reasoning]
1. Determination on the Claim for Retirement Allowance
A. According to the reasoning of the judgment below, the court below, having found the facts stated therein based on the evidence it adopted, determined as follows: the employment rules applicable to the Plaintiffs are the January 1, 1972 Shore Employees' Employment Rules (육원취업규칙) in effect at the time of their employment and the Shore Employees' Employment Rules thereafter lawfully amended. Meanwhile, Article 28(2) of the former Labor Standards Act (근로기준법, hereinafter the "former Labor Standards Act"), as amended by Act No. 3349 of December 31, 1980, provided that "an employer shall not establish a differential system within a single business in establishing a retirement allowance system," and Article 2 of its Addenda provided that "where a collective agreement or employment rules in effect at the time of enforcement of this Act violate the provisions of Article 28(2), the employer shall amend them to conform to this Act by March 31, 1981, and report such amendment to the Minister of Labor; and where such report is not made, the retirement allowance system applicable to the largest number of workers within the relevant business shall be deemed applicable." Also, Article 128 of the former Seafarers Act (선원법), as amended by Act No. 3492 of December 31, 1981, provided that "with respect to matters concerning seafarers' labor not provided for in this Act, the Labor Standards Act shall apply mutatis mutandis." The court below held that, accordingly, Article 28(2) of the former Labor Standards Act and Article 2 of its Addenda should also apply to the Defendant company, which employed both workers subject to the Seafarers Act and workers not subject thereto; and since the Defendant company had maintained a differential retirement allowance system consisting of the Shore Employees' Employment Rules and the Seafarers' Employment Rules with different retirement allowance rates, but there was no assertion or proof that the Defendant amended and reported this by March 31, 1981, the Defendant's Shore Employees' Employment Rules became invalid as of April 1, 1981, and the employment rules serving as the basis for calculating the Plaintiffs' retirement allowances changed to the Seafarers' Employment Rules from April 1, 1981 onward. The court below further held that the Seafarers' Employment Rules of October 19, 1984, April 1, 1988, and April 1, 1992, which were lawfully amended with the consent of the Seafarers' Labor Union constituting a majority of the Defendant company's employees, became effective as to the Plaintiffs, who were shore employees, as well; and therefore the Plaintiffs' retirement allowances should be calculated in accordance with the April 1, 1992 Seafarers' Employment Rules, which was in effect at the time of their retirement. Based on this reasoning, the court below granted the Plaintiffs' claim for unpaid retirement allowances corresponding to the difference between the retirement allowance calculated accordingly and the retirement allowance actually paid to the Plaintiffs at the time of their retirement.
B. As to the Plaintiffs' and Defendant's respective grounds of appeal concerning the employment rules applicable to the calculation of retirement allowance
However, the above determination of the court below is difficult to accept for the following reasons.
(1) According to the record, the Defendant company's Seafarers' Employment Rules apply to all seafarers, and the Seafarers' Employment Rules provide that, with respect to seafarers, they refer to crew members and reserve personnel of vessels owned, operated, or managed by the Defendant company, with "crew members" meaning seafarers on board and "reserve personnel" meaning those not on board, i.e., those on leave, awaiting assignment, or unable to work. Article 3, Item 1 of the Seafarers Act provides that "seafarer means a person employed to provide labor aboard a vessel for the purpose of receiving wages, and is classified into master, ordinary seafarer (해원), and reserve personnel (meaning those not on board)." Therefore, it is clear that the Seafarers' Employment Rules were intended to apply to seafarers subject to the Seafarers Act.
(2) However, the former Seafarers Act (선원법, hereinafter the "former Seafarers Act"), enacted as Act No. 963 on January 10, 1962, was enacted for the purpose of maintaining order on board and establishing seafarers' working conditions, and, in addition to provisions on the master's duties and authority and ordinary seafarers' obligations and disciplinary matters, provided respectively for working conditions and employment contracts, wages and other remuneration, working hours, holidays, paid leave, food and hygiene, young seafarers and female seafarers, disaster compensation, and employment rules. It defined "wage" (봉급) as the basic fixed amount among the remuneration periodically paid by the shipowner to the seafarer in a set amount (first sentence of Article 4), and in Article 52 provided that where the shipowner, with the approval of the Seafarers' Labor Relations Commission, rescinded the seafarer's boarding contract and simultaneously rescinded the employment contract, etc., the shipowner was required to pay a retirement allowance equal in amount to 20 days' wages for a seafarer with continuous service of one year or less, and 30 days' wages per year for a seafarer with continuous service of one year or more, with Article 137 providing penalties for violations thereof. However, it did not contain a provision on a general retirement allowance system such as Article 28(1) of the Labor Standards Act then in effect. Thereafter, the former Seafarers Act, wholly amended by Act No. 3751 on August 7, 1984, defined "basic pay" (기본급) as a type of wage paid to a seafarer monthly in a fixed amount, serving as the basis for calculating allowances, etc. (Article 3, Item 7), and in Article 51 provided that "a shipowner shall establish a system to pay, as a retirement allowance, an amount equivalent to one month's basic pay for each year of continuous service when a seafarer retires; provided that, within a range not falling below an equivalent level, a system in lieu of the retirement allowance system may be implemented by collective agreement or seafarer's employment contract with the approval of the Seafarers' Labor Relations Commission," with Article 139, Item 1 providing penalties for violations thereof. Article 51 of the Seafarers Act, as amended by Act No. 3961 on November 28, 1987, changed the retirement allowance amount per year of continuous service to 130% of the basic pay. Thereafter, the former Seafarers Act, as amended by Act No. 4255 on August 1, 1990, defined "wage" as all money paid by the shipowner to the seafarer in the nature of remuneration for labor, whether called wages, pay, or by any other name (Article 3, Item 7), and defined "average boarding wage" (승선평균임금) as the amount obtained by dividing the total wages paid to the seafarer during the boarding period (limited to the most recent 12 months where such period exceeds 12 months) prior to the date on which the cause for calculation arose, by the total number of days in the boarding period (Article 3, Item 8-2), and in Article 51 changed the retirement allowance amount per year of continuous service to 30 days' average boarding wage. This remains in effect under the current Seafarers Act as well (provided that under the Seafarers Act as amended by Act No. 5474 on December 24, 1997, where the boarding period prior to the date on which the cause for calculating the average boarding wage arose exceeds 3 months, it is to be limited to the most recent 3 months).
(3) Meanwhile, Article 128 of the former Seafarers Act provided that "with respect to matters concerning seafarers' labor not provided for in this Act, the Labor Standards Act shall apply mutatis mutandis," but Article 5(1) of the Seafarers Act, as amended on August 7, 1984, enumerated in a limited manner the provisions of the Labor Standards Act to apply mutatis mutandis to seafarers' labor relations, excluding from the scope of such application the provisions on the retirement allowance system under Article 28 of the former Labor Standards Act then in effect.
(4) As seen above, the Seafarers Act differs significantly from the Labor Standards Act with respect to the concept of wages and the standards and method for calculating retirement allowances. This stems from the fact that, while the Labor Standards Act governs general labor relations, the Seafarers Act governs the labor relations of seafarers who are placed in a special environment, living for extended periods in isolation aboard a moving vessel and routinely exposed to hazards peculiar to the sea, such as sinking or grounding. Due to this special nature of seafarers' labor relations, the Seafarers Act, unlike the Labor Standards Act, which defines wages as all money and valuables paid to a worker, defines wages as only the money paid to a seafarer. As a result, it is not only impossible to calculate the average wage under the Labor Standards Act for a seafarer, and impossible to calculate the average boarding wage under the Seafarers Act for a person who is not a seafarer, but also, calculating the wage or basic pay under the Seafarers Act and using it as the basis for calculating retirement allowance inevitably leads to a significantly unreasonable result compared to calculating the average wage under the Labor Standards Act and using it as the basis for calculating retirement allowance. Therefore, the retirement allowance system under the Labor Standards Act and the retirement allowance system under the Seafarers Act must be regarded as separate systems differing in meaning and nature.
(5) Accordingly, pursuant to Article 128 of the former Seafarers Act, during the period from April 1, 1981, when the provision of Article 28(2) of the former Labor Standards Act prohibiting the establishment of a differential retirement allowance system took effect, until September 7, 1984, when the Seafarers Act as amended on August 7, 1984 took effect, the provision prohibiting the establishment of a differential retirement allowance system under the former Labor Standards Act applied mutatis mutandis to seafarers' labor relations as well; however, this cannot be construed as extending beyond the meaning of prohibiting the establishment of a differential retirement allowance system among seafarers themselves, to mean that no differential retirement allowance system may be established, within a single business, between seafarers and workers who are not seafarers. Therefore, even though the former Labor Standards Act took effect on April 1, 1981, the Shore Employees' Employment Rules concerning retirement allowances for the Defendant company's shore employees under the former Labor Standards Act cannot be applied to the Defendant company's seafarers, and the Seafarers' Employment Rules concerning retirement allowances for the Defendant company's seafarers under the former Seafarers Act cannot be applied to the Defendant company's shore employees either. Accordingly, even after April 1, 1981, the Shore Employees' Employment Rules should apply separately to the retirement allowances of the Defendant company's shore employees, and the Seafarers' Employment Rules should apply separately to the retirement allowances of seafarers.
Contrary to this, the views expressed in Supreme Court Decision 93Da58776 rendered on February 3, 1995, and Supreme Court Decision 97Da37746 rendered on March 13, 1998, which held, on the premise that the retirement allowance provisions under the former Seafarers Act could apply to the retirement allowances of persons who are not seafarers, that after April 1, 1981, upon the enforcement of the former Labor Standards Act, the retirement allowance system under the Defendant company's Seafarers' Employment Rules became the sole retirement allowance system applicable to the Defendant company's shore employees as well, are hereby modified to the extent they conflict with the foregoing.
(6) Accordingly, the court below's determination that the Seafarers' Employment Rules apply to the retirement allowances of the Defendant company's shore employees, and its consequent granting of part of the Plaintiffs' claim for unpaid retirement allowance in this case, constitutes an error of law that misapprehended the legal principles concerning retirement allowances and the prohibition of differential retirement allowance systems under the Seafarers Act and the Labor Standards Act, thereby affecting the judgment. Therefore, the Defendant's ground of appeal pointing this out is well-founded, and it is unnecessary to further examine the Plaintiffs' ground of appeal on this point, which is without merit.
C. As to the Plaintiffs' Ground of Appeal Concerning the Calculation of Average Wage
According to the reasoning of the judgment below, the court below rejected the Plaintiffs' argument that the personal pension company subsidy and the Defendant company's in-house credit union investment subsidy, which the Defendant company paid monthly to the Plaintiffs, should be included in the calculation of the Plaintiffs' average wage, holding that the said personal pension company subsidy and credit union investment subsidy were paid gratuitously by the employer for the welfare of the employees, and that the Defendant company could not be deemed obligated to pay them.
However, the above determination of the court below is difficult to accept for the following reasons.
Any money or valuables paid by an employer to a worker as remuneration for labor, which is paid continuously and regularly to the worker, for which the employer is obligated to pay pursuant to a collective agreement, employment rules, salary regulations, employment contract, labor practice, etc., and which is paid uniformly to workers meeting certain requirements, must be regarded as wages subject to inclusion in the calculation of average wage, regardless of its name (see, e.g., Supreme Court en banc Decision 97Da5015 rendered on May 12, 1999).
According to the record, it can be seen that each of the above amounts claimed by the Plaintiffs was paid continuously and regularly to all workers, and that earned income tax was even withheld therefrom; the standard for payment was not left to the discretion of the employer; and it is difficult to view these as paid for reimbursement of actual expenses. Therefore, in light of the legal principles set forth above, there is sufficient room to view each of the above amounts as wages for which the Defendant company was obligated to pay.
If so, the court below should have conducted a more detailed examination, such as by urging the Plaintiffs to present evidence, regarding the circumstances under which the Defendant company came to pay each of the above amounts to its workers, and should have determined whether each of the above amounts constituted wages paid as remuneration for labor to workers including the Plaintiffs. However, without doing so, the court below merely rejected the Plaintiffs' argument on this point on the ground that there was no proof that the Defendant company was obligated to pay each of the above amounts. This constitutes an error of law that misapprehended the legal principles concerning wages, or failed to exhaust the necessary examination, thereby affecting the judgment. Therefore, the Plaintiffs' ground of appeal pointing this out is well-founded.
2. Determination on the Claim for Wages
According to the reasoning of the judgment below, the court below rejected the Plaintiffs' argument that the voluntary return to the Defendant company of 10% of wages for the five-month period from January 1, 1998 to March 31, 1999, 100% of the April 1998 bonus, and 50% of the December 1998 bonus—totaling KRW 5,035,129 for Plaintiff 1 and KRW 4,275,000 for Plaintiff 2—was made under coercion by the Defendant company and should therefore be null and void or rescinded, holding that the evidence stated in the judgment supporting the Plaintiffs' assertion was difficult to believe, and that there was no other evidence to establish this.
Upon examination in light of the record, the above determination of the court below is deemed justified and acceptable, and it cannot be said that there was an error of law in failing to exhaust the necessary examination resulting in a mistaken finding of fact; nor can the return of the above wages be regarded as having been induced by deception on the part of the Defendant company. The Plaintiffs' ground of appeal on this point is without merit.
3. Conclusion
Therefore, the part of the judgment below concerning retirement allowance is reversed, and that part of the case is remanded to the court below for further hearing and determination; the remainder of the Plaintiffs' appeal is dismissed. This Judgment is rendered in accordance with the unanimous opinion of all the Justices participating, as set forth in the Order.
Chief Justice Choi Jong-yeong (Presiding Justice), Justice Song Jin-hun, Justice Seo Seong, Justice Cho Mu-je, Justice Byun Jae-seung, Justice Yu Ji-dam, Justice Yoon Jae-sik (Justice in Charge), Justice Lee Yong-woo, Justice Bae Ki-won, Justice Kang Shin-wook, Justice Lee Kyu-hong, Justice Son Ji-yeol, Justice Park Jae-yun