[Plaintiffs, Appellants] Plaintiff 1 and 6 others (Attorney Kang Young-mo, Counsel for the plaintiffs)
[Defendant, Appellee] Hanil Cement Industrial Co., Ltd.
[Judgment Below] Seoul High Court Decision 2000Na53948 rendered on July 11, 2001
[Order]
All appeals are dismissed. The costs of the appeal are to be borne by the Plaintiffs.
[Reasoning]
1. The court below found, as noted above, that the Defendant company had regularly and uniformly paid to the Plaintiffs, under the name of "special production incentive bonus," an amount equivalent to an average of 250% of the annual base salary from 1988 to 1997. However, the court below also found the following facts: around 1988, such production incentive bonus came to be paid because, at the time, Dongyang Securities, an affiliate of Dongyang Cement, a company in the same industry as the Defendant, paid its employees a bonus of 1000% per year, and the labor union of Dongyang Cement, the parent company, which had been receiving a smaller bonus of 600%, protested against this, forming a consensus throughout the entire cement industry, which led to a labor dispute arising at the Defendant company as well; the dispute was eventually resolved through mediation by the Labor Dispute Mediation Committee, and around January 1989 an agreement was reached to pay a production incentive bonus of 350% to all workers in the cement industry, and payment was made accordingly. However, according to the mediation proposal at the time, the additionally paid 350% bonus was a special bonus in consideration of the 1988 business performance, and it was agreed that it would be limited to the year 1988; nevertheless, as the Defendant company's business performance continued to improve thereafter, the bonus continued to be paid in this manner for over ten years. Thereafter, every time a collective agreement was concluded, the Defendant company's labor union demanded that the special production incentive bonus be included in the base salary, but no agreement was reached on this matter, and with respect to retirees as well, retirement allowances had been paid without including this bonus in the average wage. Then, upon facing the economic crisis caused by the IMF (International Monetary Fund) crisis, the Defendant company discontinued payment of the special production incentive bonus from January 1998 (corresponding to the latter half of 1997) onward. Comprehensively considering these facts, the court below determined that the special production incentive bonus in this case had been paid by the Defendant company to its employees as a gratuitous payment in consideration of business performance, and therefore did not constitute wages forming the basis for calculating average wages.
The total amount of wages forming the basis for calculating average wages includes all money and valuables paid by the employer to the employee as consideration for work, which are paid continuously and regularly to the employee and which the employer is obligated to pay pursuant to a collective agreement, rules of employment, wage regulations, employment contract, labor practice, etc., regardless of their designation (see Supreme Court Decision 97Da56235 rendered on February 9, 1999; Supreme Court en banc Decision 97Da5015 rendered on May 12, 1999, etc.). As found by the court below, even though the circumstances under which the Defendant company came to pay the special production incentive bonus were that, around January 1989, an agreement was reached in the labor dispute involving cement industry workers to pay a 350% production incentive bonus, and payment was made accordingly, and even though the mediation proposal at the time provided that the additionally paid 350% bonus was a special bonus in consideration of the 1988 business performance and was agreed to be limited to the year 1988, if thereafter, regardless of fluctuations in the Defendant company's business performance or the employees' work performance, a special production incentive bonus equivalent to 250% of the base salary was paid to employees regularly, continuously, and uniformly until the economic crisis caused by the IMF crisis occurred, it is reasonable to view this as something for which the employer was obligated to pay pursuant to the employment contract or labor practice, etc., and thus as constituting wages forming the basis for calculating average wages.
Nevertheless, the court below's determination that the special production incentive bonus in this case does not constitute wages forming the basis for calculating average wages was erroneous; however, as will be seen below, since the court below's hypothetical determination is justified, the above error in the judgment below does not affect the outcome of the judgment, and therefore the ground of appeal pointing this out is ultimately without merit.
2. The court below determined that, even if, as the Plaintiffs argue, the special production incentive bonus could be regarded as having the character of wages to be included in the average wage, considering the circumstances stated in the judgment, it is reasonable to view that there was an implied agreement between labor and management to exclude the special production incentive bonus from the calculation of retirement allowances, and that even if the special production incentive bonus alleged by the Plaintiffs were included in the average wage and the minimum retirement allowance prescribed by the Labor Standards Act (근로기준법) were calculated on that basis, it is clear from the calculation that, in the Plaintiffs' case, such amount would be less than the retirement allowance calculated and paid by the Defendant company to the Plaintiffs in accordance with the Defendant company's retirement allowance payment regulations, reflecting only the 700% bonus; therefore, such agreement cannot be regarded as violating the Labor Standards Act. On this basis, the court below rejected the Plaintiffs' argument that the special production incentive bonus should also be included in the average wage when calculating retirement allowances.
Upon examination of the record, the above findings and determination of the court below are justified, and there is no illegality therein, such as misapprehension of facts, violation of the rules of evidence, or insufficient deliberation, as alleged in the grounds of appeal.
3. Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing parties. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Park Jae-yun (Presiding Justice), Justice Seo Seong, Justice Yu Ji-dam (Justice in charge), Justice Bae Gi-won