[Plaintiff, Appellant and Appellee] Plaintiff (Counsel: Attorney Oh Seung-geun)
[Defendant, Appellee and Appellant] Defendant (Counsel: Attorney Choi Seok-bong and 3 others)
[Judgment Below] Seoul High Court Decision 90Na10256 dated March 6, 1991
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. As to the grounds of appeal of Plaintiff's counsel
(1) According to the reasoning of the judgment below, the court below rejected the Plaintiff's argument that the wages received from the Defendant under the name of "other allowances" should also be included in the ordinary wage for the calculation of the various statutory allowances, on the ground that there was no evidence to establish that the "other allowances" were paid regularly and uniformly for the Plaintiff's prescribed work or total work, and thus the "other allowances" could not be included in the ordinary wage.
Since Article 46 of the Labor Standards Act (근로기준법) provides that at least 50/100 of the ordinary wage shall be added for overtime, night, and holiday work, whether the "other allowances" received by the Plaintiff from the Defendant fall within the scope of the ordinary wage affects not only the overtime, night, and holiday work allowances sought by the Plaintiff but also the amount of the retirement allowance.
However, according to the descriptions in Exhibits Ga No. 1-1 through 1-36 (each wage statement) adopted by the court below, it is recognized that during 24 months out of the 36-month period (March 1986 to February 1989) for which the Plaintiff seeks unpaid wages, the Plaintiff received from the Defendant, together with other wages, amounts ranging from as little as KRW 15,047 to as much as KRW 71,315 per month under the name of "other allowances" on the wage statements (other workers besides the Plaintiff also received similar amounts of wages under the name of "other allowances" from the Defendant during the same period). Given that the Plaintiff received a considerable amount of "other allowances," together with wages under other names, from the Defendant over such a substantial period, it is sufficiently probable that this falls within the scope of the ordinary wage paid regularly and uniformly for prescribed work or total work. Therefore, the court below, as the court of fact-finding, should have exercised its power to request clarification or otherwise ascertained the details of the "other allowances" and determined whether they should be included in the scope of the ordinary wage. However, without doing so, the court below rejected the Plaintiff's argument on the ground that there was no evidence to establish that the "other allowances" were included in the ordinary wage, thereby committing an unlawful act of failing to exhaust the deliberation or violating the rules of evidence, which affected the outcome of the judgment. Accordingly, the ground of appeal on this point is well-founded.
(2) According to the reasoning of the judgment below, with respect to the basic pay paid under the piece-rate system, the court below calculated the hourly ordinary wage by dividing the total monthly basic pay by the total working hours of the relevant month. With respect to the coal-face allowance, welfare allowance, remote area allowance, pit-entry blasting allowance, and long-service allowance, which were paid as monthly amounts, the court below calculated the hourly ordinary wage by subtracting the monthly weekly holiday allowance total from the sum of each of the above allowances and dividing the result by the prescribed working hours of the relevant month. The court below then combined these figures to determine the Plaintiff's hourly ordinary wage. In calculating the Plaintiff's overtime work allowance, on the ground that the basic form of the Plaintiff's work was the piece-rate system and thus the hourly ordinary wage corresponding to the overtime working hours had already been paid, the court below calculated the overtime work allowance using the formula "overtime work allowance = hourly ordinary wage × overtime working hours × 0.5," and recognized the amount obtained by subtracting the overtime work allowance already paid from this figure as the unpaid overtime work allowance.
However, since the total basic pay paid under the piece-rate system is wages for the total working hours, it can be said to include the ordinary wage (100/100) corresponding to overtime work; however, the above allowances, which are to be paid as monthly amounts for work during the prescribed working hours, should be considered not to include any amount for overtime work. Therefore, pursuant to Article 46 of the Labor Standards Act, the formula for calculating the Plaintiff's overtime work allowance should be: "overtime work allowance = (hourly ordinary wage × overtime working hours × 1.5) − (basic pay × overtime working hours / total working hours)." The judgment below, having reached a different conclusion, erred in its understanding of the legal principles concerning the calculation of overtime work allowance, and this error affected the outcome of the judgment. Accordingly, the ground of appeal on this point is well-founded to the above extent.
2. As to the grounds of appeal of Defendant's counsel
(1) As to the argument of violation of statutes
According to the reasoning of the judgment below, the court below held that, although 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; hereinafter the same) provides that the time required for workers to enter and exit the pit in underground work shall be excluded from working hours, this provision only means that such time is excluded from the working hours (6 hours per day) that form the basis for calculating the standard working hours under Article 43 of the former Labor Standards Act (근로기준법) (before its deletion by Act No. 4220 on January 13, 1990; hereinafter the same), and cannot be construed as excluding such time from the actual working hours subject to wage payment. Accordingly, the court below found that the time required for entering and exiting the pit is included in the working hours.
Generally, in underground work such as coal mining, the time required for entering and exiting the pit is, in principle, considered to be included in working hours. However, the fact that the above former Article 43 of the Labor Standards Act reduced the daily working hours for underground work by 2 hours from the 8-hour daily working hours of general work to 6 hours is to be interpreted as reflecting both the hazardous and dangerous nature of underground work itself and the fact that the time required for entering and exiting the pit necessarily varies from one underground worksite to another. Accordingly, the provision of Article 27, Paragraph 2 of the same Enforcement Decree, which excludes the time required for entering and exiting the pit in underground work from working hours, is in accordance with the purport of the above parent statute, and under the above respective provisions, the time required for entering and exiting the pit must be regarded as excluded from the working hours of underground work. (It appears that Article 11 of the collective bargaining agreement (단체협약) concluded between the Hamtae Mine Labor Union, to which the Plaintiffs belong, and the Defendant, which provides that the working hours of underground workers shall be 6 net hours per day, is also premised on the exclusion of the time required for entering and exiting the pit from working hours, in accordance with the purport of the provision of Article 27, Paragraph 2 of the former Enforcement Decree of the Labor Standards Act.)
The court below, having taken a different view and interpreted the entering and exiting time as included in the working hours, committed an error in the interpretation of the above relevant statutes, which affected the judgment. The ground of appeal pointing this out is well-founded.
(2) As to the argument of violation of the rules of evidence
According to the reasoning of the judgment below, the court below, after weighing the evidence as stated in its reasoning, found that the underground workers of the Hamtae Coal Mine, including the Plaintiff, began entering the pit about 1 hour before the start of work, arrived at the waiting room near the worksite no later than about 20 minutes before the start of work, received attendance confirmation, safety education, and work instructions, then commenced work exactly at the start time, worked 8 hours a day including rest time until the end of work, and then exited the pit. The court below thus determined that even after deducting 1 hour of rest time, the Plaintiff's actual daily working hours, including the time required for entering and exiting the pit, exceeded at least the 8 hours claimed by the Plaintiff.
As noted above, since the time required for entering and exiting the pit in underground work is not included in working hours, the court below erred in determining that the time for entering the pit up to the underground waiting area and exiting therefrom is included in working hours. However, examining the record regarding the evidence weighed by the court below in finding the other basic facts for calculating working hours, the court below's evaluation of evidence and fact-finding are properly acceptable. As for Exhibits Eul No. 4-1, 2 (Standardization Study on Working Hours in Coal Mine Pits) cited in the argument, in light of the fact that some of the contents thereof conflict with the collective bargaining agreement (regarding rest time) between labor and management and are also inconsistent with the testimony of witness Nonoutside Party (소외인), the court below's action of rejecting part of the description in the above documentary evidence is acceptable, and there is no other violation of the rules of evidence, as argued, in the court below's fact-finding or evaluation of evidence. This ground of appeal is without merit.
3. Therefore, the appeals of both parties are accepted, the judgment below is reversed, and 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.
Justice Kim Ju-han (Presiding Justice), Choi Jae-ho, Yun Kwan, Kim Yong-jun