[Plaintiff, Appellant] Plaintiff (Attorneys Lee Won-yeong and 1 other, Counsel for the Plaintiff)
[Defendant, Appellee] Chosun Beer Co., Ltd.
[Judgment Below] Seoul High Court Judgment 94Na26440, decided March 30, 1995
[Order]
The part of the judgment below against the Plaintiff is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
Regarding Ground No. 1
Since the right to claim retirement allowance arises upon satisfaction of the requirement of retirement, i.e., the fact that continuous employment has ended (see Supreme Court Decision 92Da17754, decided September 14, 1992), the continuous years of service, average wage, and retirement allowance payment rate, which serve as the basis for calculating retirement allowance, must all, absent special circumstances, be determined as of the time of retirement (see Supreme Court Decisions 90Da14560, decided June 28, 1991, and 93Da26168, decided July 11, 1995).
Examining this case, the record shows the following facts: the Defendant company's retirement allowance payment rate adopted a high progressive multiplier system in the 1966 collective bargaining agreement concluded on May 10, 1966, and this was carried over unchanged in the collective bargaining agreements renewed annually thereafter until 1978; in the 1979 collective bargaining agreement concluded on October 1, 1979, the progressive rate was adjusted downward, and this retirement allowance payment rate was carried over unchanged in the collective bargaining agreements renewed annually thereafter until 1987; in the 1988 collective bargaining agreement concluded on May 12, 1988, the progressive rate was further adjusted downward such that one month's average wage was to be paid as retirement allowance per one year of continuous service, provided that for each year exceeding 10 years of continuous service as of April 10, 1988, two months' average wage was to be paid, and for the period thereafter, one month's average wage was to be paid; this retirement allowance payment rate was carried over unchanged in the collective bargaining agreements renewed annually thereafter until 1990; then, in the 1991 collective bargaining agreement concluded on March 24, 1991, the retirement allowance payment rate was changed such that the progressive multiplier system applied to the period before April 10, 1988, and for employees with 10 or more years of service as of April 10, 1988, the standard rate applicable to years of service after the 10th year of the standard payment rate applied, with a standard rate set for the period after the 10th year that slightly exceeded one month's payment per one year of service, resulting in a slightly higher retirement allowance payment rate than the previous rate of one month's average wage per one year of service, and this was carried over unchanged in the 1992 collective bargaining agreement as well; the Plaintiff joined the Defendant company on June 1, 1960, took an interim retirement on July 25, 1977, and received a retirement allowance at that time, but continued to work without any severance of the employment relationship with the Defendant company, and retired due to mandatory retirement age on March 1, 1993, before the 1993 collective bargaining agreement was concluded. Given these circumstances, the retirement allowance payment rate applicable to the Plaintiff should be the retirement allowance payment rate set forth in the 1992 collective bargaining agreement, and the 1992 collective bargaining agreement's retirement allowance payment rate merely provides that, for years of service before April 10, 1988, the rate follows that of the 1991 collective bargaining agreement, i.e., the "progressive multiplier system," without specifying its concrete content. As the concrete content of the progressive multiplier system is not specified, this must be interpreted to mean the "previous progressive multiplier system," and since among the previous progressive multiplier systems, the only one that remains valid is the progressive multiplier system adopted in the 1988 collective bargaining agreement and carried over annually until the 1990 collective bargaining agreement, the retirement allowance payment rate applicable to the Plaintiff's years of service before April 10, 1988 should ultimately be the retirement allowance payment rate set forth in the 1988 collective bargaining agreement.
The court below's judgment, which reached the same conclusion, is justified, and it cannot be said that there was any error in violation of the rules of evidence resulting in a mistake of fact or a misapprehension of legal principles as argued in the grounds of appeal. This ground of appeal is without merit.
Regarding Ground No. 2
In order for money or goods paid by an employer to an employee to constitute wages that may be included in the total wage amount forming the basis for calculating average wage, such money or goods must first be paid as consideration for labor. Therefore, even if such money or goods are paid continuously and periodically, if they cannot be viewed as having been paid as consideration for labor, they cannot be considered wages.
In determining whether certain money or goods were paid as consideration for labor, it must be possible to view the occurrence of the obligation to pay such money or goods as directly related to, or closely related to, the provision of labor. Where, without such relation, the occurrence of the payment obligation depends on the special and incidental circumstances of individual employees, such money or goods cannot be viewed as having been paid as consideration for labor, even if the payment was made pursuant to a collective bargaining agreement, rules of employment, employment contract, or the employer's policy (see Supreme Court Decision 94Da55934, decided May 12, 1995).
Examining this case, the Plaintiff argued that 1/12 of the summer vacation allowance of 70,000 won paid to the Plaintiff should be included in the average wage forming the basis for calculating retirement allowance. The court below misunderstood the Plaintiff's above argument as an argument that a summer vacation work allowance for not having used summer vacation should be included in the average wage, and rejected it on the ground that there was no evidence to find that the Plaintiff had not used summer vacation.
However, the Defendant company's 1992 collective bargaining agreement provides that the company shall uniformly pay 70,000 won to all employees as a summer vacation allowance, and that the three days of summer vacation must be taken between July 1 and August 31 of each year, and that this is unrelated to annual/monthly leave, salary, or allowances. If the Defendant company paid the above summer vacation allowance uniformly regardless of whether employees actually took summer vacation, this would constitute money paid as consideration for labor and thus qualify as wages, so that the portion of the above summer vacation allowance corresponding to December 1992, and January and February 1993 should be included in the total wage amount forming the basis for calculating average wage. However, if the above summer vacation allowance was paid only to employees who actually took summer vacation, this would be nothing more than money paid gratuitously without relation to the provision of labor, and thus would not constitute wages, and could not be included in the total wage amount forming the basis for calculating average wage.
Therefore, the court below should have further examined whether the summer vacation allowance was paid regardless of whether employees actually took summer vacation, and if the summer vacation allowance was paid even to employees who did not take summer vacation, should have included the portion of the above summer vacation allowance corresponding to December 1992, and January and February 1993 in the total wage amount forming the basis for calculating average wage. Nevertheless, the court below calculated the average wage by carelessly excluding this amount, which constitutes an error of failing to fully examine the matter due to a misapprehension of the legal principles concerning average wage. The point raising this issue in the grounds of appeal is well-founded.
Regarding Ground No. 3
Article 31, Paragraph 1 of the Enforcement Decree of the Labor Standards Act (근로기준법시행령) defines "ordinary wage" under the Labor Standards Act (근로기준법) as "the hourly wage amount, daily wage amount, weekly wage amount, monthly wage amount, or piece-rate wage amount that is determined to be paid regularly and uniformly for prescribed work or total work performed by an employee." Accordingly, as a general rule, money or goods paid to an employee as consideration for prescribed work or total work, which is paid regularly and uniformly, constitutes a wage belonging to ordinary wage. However, in light of the legislative purpose of the Labor Standards Act in guaranteeing a minimum level of average wage and recognizing ordinary wage as the standard for calculating premium wages such as overtime work allowance, night work allowance, and holiday work allowance, as well as advance dismissal notice allowance, and in light of the function and necessity of ordinary wage, in order for a certain wage to constitute ordinary wage, it must belong to a fixed wage that is paid regularly and uniformly. Therefore, a wage whose payment or amount varies depending on actual work performance cannot be considered a fixed wage and thus does not constitute ordinary wage (see Supreme Court Decision 94Da19501, decided February 9, 1996).
Examining this case, the record shows the following: the Defendant company's 1992 collective bargaining agreement provides that a production allowance shall be paid to employees engaged in hazardous occupations, without any provision regarding the scope of hazardous occupations or the amount to be paid; the Plaintiff worked as a Class A general staff employee in the manufacturing division of the production department from February 10, 1989 until retirement on March 1, 1993, and received production allowances of 22,031 won each in December 1992 and January 1993, and 22,196 won in February 1993; Bae Seong-rok, a co-plaintiff in the court below who, like the Plaintiff, worked as a Class A general staff employee in the manufacturing division of the production department, received production allowances of 19,688 won each in December 1992 and January 1993, and 19,853 won in February 1993; the above collective bargaining agreement provides that employees who work 8 hours or more per day shall be provided with a quality lunch (meal cost equivalent to approximately 900 won per meal for staple and side dishes), and that employees who work overtime for 2 hours or more shall be provided dinner, and night shift workers working after 21:00 shall be provided a night meal equivalent to lunch. Furthermore, upon examination of the record, there is no material showing that money or goods equivalent to meal costs were provided to employees who did not eat the above meals. Given these circumstances, the above production allowance appears to be one whose payment amount varies depending on work performance, and does not appear to have been paid fixedly and uniformly, and thus does not constitute ordinary wage; the above meal costs likewise cannot be said to have been paid uniformly, and thus do not constitute ordinary wage.
However, the above collective bargaining agreement provides that the company shall pay 15,000 won per month as a personal allowance (본인수당), and this constitutes a fixed wage paid regularly and uniformly to employees, and thus should be included in ordinary wage (see Supreme Court Decision 91Da5501, decided July 14, 1992).
Therefore, the court below's determination that the above production allowance and meal costs do not belong to ordinary wage is justified, and it cannot be said that there was any illegality as pointed out in the grounds of appeal. However, although the personal allowance should have been included in ordinary wage, the court below's calculation of ordinary wage excluding the personal allowance constitutes an error of misapprehending the legal principles concerning ordinary wage, and this clearly affected the judgment. Therefore, this part of the grounds of appeal is well-founded on this point.
Accordingly, having accepted part of the grounds of appeal, the part of the judgment below against the Plaintiff is reversed, and this part of the case is remanded to the court below for further examination and determination. The Justices are unanimous in this opinion, and it is so ordered as stated in the Order.
Justice Kim Seok-su (Presiding Justice), Jeong Gwi-ho, Lee Don-hee (Justice in Charge), Lee Im-su