【Plaintiffs, Appellants and Appellees】 Plaintiff 1 and 1 other (Attorney Oh Seung-geun, Counsel for the Plaintiffs)
【Defendant, Appellee and Appellant】 Defendant (Attorneys Choi Seok-bong and 1 other, Counsel for the Defendant)
【Judgment Below】 Seoul High Court Decision 90Na15442, rendered April 17, 1991
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The Court examines the grounds of appeal submitted by the Plaintiffs' counsel.
1. According to the reasoning of the judgment below, the court below rejected the Plaintiffs' argument that the wages received from the Defendant under the name of "other allowances" should also be included in the ordinary wages used for calculating statutory allowances, on the ground that there was no evidence to establish that the "other allowances" were wages fixed to be paid regularly and uniformly for the employees' prescribed working hours or total working hours.
However, according to the entries in Exhibits Gap No. 1-1 through 1-25 and Gap No. 2-1 through 2-34 (each a wage statement), which were adopted by the court below, it is established that Plaintiff 1 received from the Defendant, for 13 months (June 1986 to June 1987) out of the 25-month period (December 1985 to December 1987) for which he seeks payment of unpaid wages, amounts ranging from a minimum of KRW 25,033 to a maximum of KRW 40,200 per month under the name of "other allowances" together with other wages as stated in the wage statements; and that Plaintiff 2 received from the Defendant, for 13 months (June 1986 to June 1987) and 6 months (April 1988 to September 1988) out of the 34-month period (December 1985 to September 1988) for which he seeks payment of unpaid wages, amounts ranging from a minimum of KRW 26,183 to a maximum of KRW 71,198 per month under the same name (other employees besides the Plaintiffs also received similar amounts of wages under the name of "other allowances" from the Defendant during the same period). Furthermore, according to the testimony of the witness in the court below, Non-party (record at page 576 et seq.), which was likewise adopted as evidence by the court below, it is established that the Defendant paid to the employees, in installments over 6 or 7 months each year, wage increases relating to the basic pay and various allowances under the name of "other allowances."
In light of the above evidentiary relationship, there is room to view that the "other allowances" received by the Plaintiffs from the Defendant together with wages under other names may, depending on their actual content, bear the character of ordinary wages paid regularly and uniformly for prescribed working hours or total working hours. Therefore, the court below should have exercised its right to seek clarification from the Defendant or otherwise ascertained the details of the "other allowances" in order to determine whether they should be included within the scope of ordinary wages. The court below's summary rejection of the Plaintiffs' above argument, without doing so, on the ground that there was no evidence to find that the "other allowances" were included in ordinary wages, constitutes an unlawful act in violation of the rules of evidence and incomplete deliberation that affected the outcome of the judgment. The argument pointing out this error is well-founded.
2. The Court examines the grounds of appeal submitted by the Defendant's counsel.
(1) Ground of Appeal No. 1
According to the reasoning of the judgment below, the court below determined that although Article 27(2) of the former Enforcement Decree of the Labor Standards Act (근로기준법시행령) (before its deletion by Presidential Decree No. 13053 of July 14, 1990) provided that, for underground work as prescribed under Article 43 of the former Labor Standards Act (근로기준법) (before its deletion by Act No. 4220 of January 13, 1990), the time required for an employee's entering and exiting the pit shall be excluded from working hours, the purport of this provision was merely to exclude the time required for entering and exiting the pit from the working hours (6 hours per day, 36 hours per week), and not to exclude such time from actual working hours; and on this basis rejected the Defendant's argument that, pursuant to the above provision of the former Enforcement Decree of the Labor Standards Act, the time required for entering and exiting the pit should be excluded from 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 reason why the above Article 43 of the former Labor Standards Act shortened the daily working hours for underground work to 6 hours, 2 hours less than the 8-hour daily working hours for general labor, is to be interpreted as taking into account not only the hazardous and dangerous nature of underground work itself but also the fact that the time required for entering and exiting the pit necessarily differs from one underground worksite to another. Therefore, the provision of Article 27(2) of the same Enforcement Decree, which provides that the time required for entering and exiting the pit in underground work shall be excluded from working hours, is in accordance with the purport of the above parent statutory provision, 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 also appears that Article 11 of the collective bargaining agreement 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 a net 6 hours per day, likewise reflects the intent to exclude the time required for entering and exiting the pit from working hours, in accordance with the purport of Article 27(2) of the former Enforcement Decree of the Labor Standards Act.)
The court below's rejection of the Defendant's above argument based on a different interpretation constitutes an unlawful misinterpretation of the statute that affected the judgment, and the argument pointing out this error is well-founded.
(2) Ground of Appeal No. 2
According to the reasoning of the judgment below, the court below found, based on the evidence cited therein, that the underground miners including the Plaintiffs, divided into three shifts (A, B, and C), performed underground coal-mining work in rotation; that, in accordance with the cage entry time of each shift, they boarded the cage and man-car, arrived at the work waiting area 20 minutes before the commencement of work, received 20 minutes of safety training and work instructions, commenced work at the scheduled starting time, and worked for 7 hours until the scheduled ending time excluding 1 hour of rest time including meal time, and then exited the pit in accordance with the cage and man-car exit time; and determined that, of the 8 hours and 40 minutes remaining after excluding the rest time including meal time from the total of 9 hours and 40 minutes from the commencement of pit entry to the commencement of pit exit, the Plaintiffs actually worked the 8 hours claimed by them.
As stated 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 was included in working hours. However, upon examination of the record concerning the evidentiary determinations made by the court below in finding the underlying facts for the calculation of working hours, the court below's evaluation of the evidence is properly acceptable. The contents of Exhibits Eul No. 6-1, 6-2, and No. 7, as argued in the grounds of appeal, conflict with the contents of the examination records of the Defendant's mine labor affairs section chief and mine manager as witnesses, namely Exhibits Eul No. 5-1, 5-2, and No. 8-1, 8-2, and thus the court below's rejection of the credibility of the former exhibits is acceptable. There is no other unlawful violation of the rules of evidence in the court below's evidentiary determination as argued in the grounds of appeal.
This argument is without merit.
(3) Ground of Appeal No. 3
The court below found that, under the collective bargaining agreement concluded between the Defendant and the Hamtae Mine Labor Union, retirees who have completed at least 3 years of continuous service and retire upon reaching the mandatory retirement age are to be paid an additional 30 days' worth of average wages under the name of a consolation payment; and on this basis, calculated the number of days for retirement allowance payment for each of the Plaintiffs by adding 30 days, as retirees who had served at least 3 years and retired upon reaching mandatory retirement age, to the number of days for retirement allowance payment under the retirement allowance payment schedule attached to the collective bargaining agreement. Upon examination of the record, the court below's calculation of the number of days for retirement allowance payment as described above is proper, and there is no unlawful misapprehension of the legal principles concerning consolation payments as argued in the grounds of appeal. Therefore, this argument is also without merit.
3. Accordingly, the judgment below is reversed and the case is remanded, and this judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Bae Man-un (Presiding Justice), Lee Hoi-chang, Lee Jae-sung, Kim Seok-su