[Plaintiffs, Appellants and Appellees]
[Defendant, Appellant and Appellee]
[Judgment Below] Seoul High Court Decision 92Na60101 rendered on May 13, 1993
[Order]
The judgment below is reversed.
The case is remanded to the Seoul High Court.
[Reasoning]
1. Judgment on the First Ground of Appeal by Plaintiffs' Litigation Counsel
The court below determined as follows: at the ○○ Coal Mine operated by the Defendant, no daily or weekly prescribed working hours forming the basis for wage payment were fixed between the workers and the employer; and although the collective bargaining agreement concluded between the Defendant and the labor union of the ○○ Coal Mine workers provides that, for workers engaged in hazardous work inside the mine shaft such as the Plaintiffs, the net daily working hours shall be 6 hours, this provision is unrelated to the daily or weekly prescribed working hours; therefore, in the case of the Plaintiffs, who are coal-cutting workers or tunneling workers at the ○○ Coal Mine, the prescribed working hours should be determined pursuant to the Labor Standards Act (근로기준법); and for the period during which the current Labor Standards Act, as amended by Act No. 4220 on January 13, 1990, was in effect while the Plaintiffs were working, the Plaintiffs' prescribed working hours applicable thereto were 8 hours per day and 44 hours per week.
However, the portion of a collective bargaining agreement that establishes working conditions such as working hours, holidays, and leave, and other matters concerning the treatment of workers, constitutes the so-called normative portion, and any part of the rules of employment or an employment contract that violates the standards thereof becomes void; and for such void portions, or for matters not stipulated in the employment contract, the standards set forth in the collective bargaining agreement shall govern (Article 36 of the Trade Union Act (노동조합법)). Accordingly, if, as found by the court below, the above collective bargaining agreement provides that the daily working hours of workers engaged in hazardous work inside the mine shaft, such as the Plaintiffs, are set at 6 hours, then even if the prescribed working hours are not specified in the individual employment contracts concluded between the Defendant and the Plaintiffs, the Plaintiffs' daily prescribed working hours must be deemed to be 6 hours per day pursuant to the standard set forth in the collective bargaining agreement.
Nevertheless, the court below determined that the working hours set forth in the collective bargaining agreement as above were unrelated to the Plaintiffs' prescribed working hours, and thus concluded that, following the enforcement of the current Labor Standards Act, the Plaintiffs' prescribed working hours should be governed by the basic working hours prescribed by that Act. The judgment below therefore contains an error of misapprehending the legal principles concerning the effect of a collective bargaining agreement, and it is evident that such error affected the judgment. Accordingly, the argument pointing out this error is well-founded.
2. Judgment on the Second Ground of Appeal by Plaintiffs' Litigation Counsel and the First Ground of Appeal by Defendant's Litigation Counsel
The court below's findings and determination regarding the Plaintiffs' actual working hours inside the mine shaft are deemed justified and acceptable in light of the relevant evidence, the record, and the content of the relevant statutory provisions. It cannot be found that there was, in the course thereof, any violation of the rules of evidence or any error in mistakenly finding facts due to misapprehension of the legal principles concerning working hours under the Labor Standards Act, as argued. Moreover, it cannot be said that the above determination of the court below conflicts with the precedents of this Court cited in the argument. Accordingly, all of these arguments are without merit.
However, it should be pointed out that the court below determined that, from the time the current Labor Standards Act took effect, the one hour spent entering and exiting the mine shaft should also be included in actual working hours; but, as determined above in Section 1, despite the amendment of the Labor Standards Act, the Plaintiffs' prescribed working hours must be deemed to be 6 hours per day in accordance with the standard set forth in the collective bargaining agreement. Furthermore, the provision in the collective bargaining agreement setting the working hours of workers engaged in hazardous work inside the mine shaft at 6 net hours per day appears to reflect an intent, pursuant to Article 27, Paragraph 2 of the former Enforcement Decree of the Labor Standards Act (구 근로기준법시행령) (before its deletion by Presidential Decree No. 13053 on July 14, 1990), to exclude the time required for entering and exiting the mine shaft from working hours. Therefore, it should be pointed out that, even after the current Labor Standards Act took effect, the time spent entering and exiting the mine shaft should not be included in actual working hours.
3. Judgment on the Third Ground of Appeal by Plaintiffs' Litigation Counsel
The court below's findings and determination regarding the point raised in the argument (namely, that there is no evidence to establish that Plaintiff 2 performed overtime work from October 1988 to March 1990) are deemed justified and acceptable in light of the relevant evidence and the record. It cannot be found that the judgment below contains an error of mistakenly finding facts in violation of the rules of evidence, as argued. Accordingly, this argument is also without merit.
4. Judgment on the Second Ground of Appeal by Defendant's Litigation Counsel
The court below addressed the Defendant's argument that, since among the various statutory allowances already paid to the Plaintiffs there existed amounts exceeding what should properly have been paid, such excess payments should be deemed to have been applied toward other statutory allowances that had not been paid. The court below determined as follows: although among the statutory allowances already paid to the Plaintiffs, there are instances in which amounts exceeding what should properly have been paid were paid, these amounts were calculated and paid voluntarily by the Defendant to the Plaintiffs, as well as to all other workers, based on the same standards, in accordance with what was set forth in the collective bargaining agreement and the rules of employment and the method of calculation voluntarily adopted by the Defendant; and the Plaintiffs likewise received the full amounts thereof as legitimate wages. The apparent excess payments, as calculated, arose because, in accordance with the Plaintiffs' claims, a portion of the overtime working hours was disregarded, the night-work hours were calculated based only on the number of working days on the night shift, and the holiday working hours were calculated based on 6.66 hours or 7.66 hours per day, which is less than the 8 hours per day that the Defendant had voluntarily recognized—thus recognizing only the minimum standards set forth in the Labor Standards Act, among other statutes. For this reason, the court below concluded that such excess amounts should not be applied to make up for unpaid amounts of allowances under other items, and thus rejected the Defendant's argument.
However, if the calculation method used by the Defendant, as the employer, in calculating the amount of statutory allowances that the Plaintiffs should have received was incorrect, such that some statutory allowances were rather overpaid while other statutory allowances were underpaid, then, absent special circumstances, the amount overpaid should be deemed to have been applied toward the other statutory allowances that were not paid.
Examining the circumstances cited by the court below as grounds for rejecting the Defendant's argument: (a) As to the point that a portion of the overtime working hours was disregarded in accordance with the Plaintiffs' claims: at the time the former Labor Standards Act, as amended by Act No. 4099 on March 29, 1989, was in effect, the weekly prescribed working hours were 35 hours; nevertheless, the Plaintiffs calculated their overtime working hours during the period that Act was in effect based on weekly prescribed working hours of 36 hours, meaning that, in fact, the Plaintiffs worked one hour per week more than they claimed, and the Plaintiffs did not claim overtime allowance for this portion. This is understood to mean that the apparent overpayment was merely a matter of calculation, and thus should not be applied toward other unpaid statutory allowances. However, according to Attached Table 3-1, the Statutory Allowance Calculation Table (for Plaintiff 1) in the judgment below, it can be seen that overtime allowance was overpaid to Plaintiff 1 even during periods such as October 1990, when the former Labor Standards Act was not applicable. Therefore, the court below's determination on this point cannot be deemed justified. (b) Next, as to the point that the Plaintiffs' night-work hours were calculated based only on the number of working days on the night shift ("byeongbang"): according to the respective statements in Exhibit A No. 1 (Collective Bargaining Agreement) and Exhibit A No. 18 (Witness Examination Record), the authenticity of which is undisputed, it can be recognized that, in the case of the ○○ Coal Mine, workers on a three-shift rotation perform night work from 22:00 to 24:00 during the second shift ("eulbang") and from 24:00 to 06:00 during the night shift ("byeongbang") (although this includes rest periods); however, calculating the night-work allowance individually for each shift would be highly complicated, and since three-shift workers rotate evenly through each shift, adding the night-work hours worked during the second shift to the night-work hours worked during the night shift and processing them collectively would ultimately result in no difference in the amount of the night-work allowance; in consideration of this, it can be recognized that the ○○ Coal Mine has established and implemented such a special method of calculation, applicable only to three-shift workers, through the collective bargaining agreement. Given this, the Defendant's calculation of night-work hours based only on the number of working days on the night shift was in accordance with the collective bargaining agreement, and it cannot be said that this is particularly disadvantageous to three-shift workers compared to the standards set forth in the Labor Standards Act. Therefore, the court below's determination that the amount of night-work allowance already paid to Plaintiffs 2, 3, and 4 did not exceed the amount that should properly have been paid, based solely on the above circumstances, must also be deemed erroneous. (c) Finally, as to the point that the Defendant calculated the Plaintiffs' holiday-work allowance based on working hours per day that were fewer than the 8 hours per day that the Defendant had voluntarily recognized: even if the Defendant calculated and paid holiday-work allowance based on hours exceeding those set forth in the collective bargaining agreement, rules of employment, or employment contract, it is appropriate, absent special circumstances indicating that a new agreement was reached between the parties regarding working conditions, to apply the excess amount of holiday-work allowance paid toward other unpaid statutory allowances. In this case, no evidence can be found in the record to establish special circumstances indicating that a new agreement regarding working conditions was reached between the parties. Therefore, the court below's determination that the excess holiday-work allowance paid could not be applied toward other unpaid statutory allowances, based solely on the above circumstances, also cannot be deemed correct.
In conclusion, the judgment below contains an error of misapprehending the legal principles concerning the nature of overpaid statutory allowances, and it is evident that such error affected the judgment. Accordingly, the argument pointing out this error is well-founded.
5. Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered as set forth in the Order, with the unanimous agreement of the Justices participating.
Supreme Court Justice Cheon Gyeong-song (Presiding Justice), Kim Ju-han, Kim Yong-jun (Justice in Charge)