[Plaintiff, Appellee]
[Defendant, Appellant] Korea Coal Corporation (대한석탄공사), Attorney Moon Kwang-shin, Litigation Representative
[Judgment Below] Seoul High Court Decision 92Na48804 rendered on May 13, 1993
[Order]
The part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning]
The grounds for appeal are examined.
1. According to the reasoning of the judgment below, the court below, citing the judgment of the first instance, found the fact that the Defendant Corporation has been paying a prescribed daily special duty allowance to employees serving as production section team leaders and employees working at deep underground work sites at depths of 600 meters or more, and determined that, in light of the payment conditions and content thereof, this allowance should reasonably be regarded as a daily wage paid to the Plaintiffs regularly and uniformly as consideration for labor, and therefore should be included in ordinary wages.
However, ordinary wages refer to general wages that are fixed and averaged, paid regularly and uniformly for the amount or quality of prescribed work, regardless of the actual days worked or the wages actually received (see this Court's Decisions 90Da카6948 rendered on November 9, 1990, and 92Da20316 rendered on May 27, 1993, among others). While being paid "uniformly" is interpreted to include not only payment "to all employees" but also payment "to all employees who meet certain conditions or standards," the "certain conditions" referred to here must be fixed conditions, in light of the concept of ordinary wages, which seeks to calculate a "fixed and averaged wage" (see the above Decision 92Da20316). However, based solely on the facts found by the court below, it cannot be ascertained whether the Plaintiffs fixedly served as production section team leaders and worked only at deep underground work sites at depths of 600 meters or more, and therefore, even though the above allowance was paid regularly, it cannot be concluded that it was paid uniformly (see the above Decision 92Da20316).
Nevertheless, the court below erred in the legal principles concerning ordinary wages by determining that the above allowance was paid uniformly and thus included in ordinary wages, and this error affected the judgment. The argument pointing out this error is therefore well-founded.
2. According to the reasoning of the judgment below, the court below found the fact that the Defendant Corporation, pursuant to its own internal policy, has been regularly paying all employees, since around 1981, an amount equivalent to 50% of their base salary twice a year under the name of "physical fitness allowance (health management allowance)," and held that this physical fitness allowance should also be included in the calculation of average wages, which serve as the basis for calculating retirement allowances. The court below then rejected the Defendant Corporation's argument that this physical fitness allowance should be excluded from the average wages used as the basis for calculating retirement allowances, on the ground that there was no assertion or proof of an express agreement between labor and management to exclude it from the calculation of average wages.
However, upon careful examination of the record, it can be seen that the Defendant Corporation, in its brief dated April 14, 1992, which was stated at the 12th oral argument session of the first instance on April 5, 1992, argued as follows: even if the physical fitness allowance, by its nature, falls within the scope of average wages, labor and management at the Defendant Corporation agreed to exclude it from wages as a welfare benefit, and the retirement allowance regulations also provide for its exclusion from average wages; moreover, since the Defendant Corporation's retirement allowance regulations adopted a progressive retirement allowance payment rate, if the result, even after excluding the allowances agreed by labor and management to be excluded from average wages, still exceeds the minimum retirement allowance prescribed under the Labor Standards Act (근로기준법), then the above retirement allowance regulations should be deemed lawful; therefore, the Plaintiffs' argument that the physical fitness allowance should be included in average wages for the calculation of lost income and retirement allowances is without merit.
If, as the Defendant Corporation argues, the above retirement allowance regulations were established by agreement between labor and management, and if the result, even excluding this allowance, still exceeds the minimum retirement allowance prescribed under the Labor Standards Act, then the above retirement allowance regulations would be lawful and valid, and accordingly, the physical fitness allowance should be excluded in calculating the average wage for purposes of determining the retirement allowance. Therefore, the court below should have examined and determined whether the above retirement allowance regulations were established by agreement between labor and management, and thereby determined the merits of the Defendant Corporation's above argument, but failed to do so. Thus, the judgment below has an illegality of failing to fully examine this matter, which affected the outcome of the judgment. The argument pointing out this error is therefore also well-founded.
3. Therefore, without examining the remaining grounds for appeal, the part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the court below. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Jung Gwi-ho
Justice Bae Man-un
Justice Kim Ju-han (Reporting Justice)
Justice Kim Seok-su