[Plaintiff, Appellant and Appellee] Plaintiff 1 and 1 other, Attorney Ko Yeong-gu, Counsel for the Plaintiffs
[Defendant, Appellee and Appellant] Korea Coal Corporation (대한석탄공사), Attorney Lim Gyu-o, Counsel for the Defendant
[Judgment Below] Seoul High Court Decision 90Na15688 rendered on June 1, 1990
[Order]
All appeals are dismissed.
The costs of appeal shall be borne by Plaintiff 1 and the Defendant, respectively.
[Reasoning]
1. As to the grounds of appeal by counsel for Plaintiff 1
The court below interpreted the provision of the Defendant's retirement allowance regulations applicable to Plaintiff 1, which provides that for periods of continuous service of one year or more but less than three years, the number of days of retirement allowance payment shall be 30 days per year, as meaning that even where an employee has served for three years or more, the number of days of retirement allowance payment for up to three years of continuous service shall be 30 days per year, and calculated the said Plaintiff's retirement allowance payment days accordingly. Such interpretation and method of calculation of the above retirement allowance regulations by the court below are correct. The argument is that the Defendant itself, in calculating the retirement allowance payment days under the above provision, had adopted a method whereby, in cases of continuous service of three years or more, the payment days for the two years of service falling within the "less than three years" category were calculated at 30 days per year, while the payment days for the service exceeding two years were calculated according to the next-tier progressive rate; however, no basis can be found in the record for interpreting the above provision in that manner, nor is there any material to find that there was any agreement between labor and management regarding such interpretation. Therefore, even if the Defendant had in fact made calculations as alleged by the Plaintiff, this must be regarded as having been done by mistake. This ground of appeal cannot be accepted.
2. As to the grounds of appeal by counsel for the Defendant
(1) According to the reasoning of the judgment below, the court below found the following facts: the Defendant amended its retirement allowance regulations effective January 1, 1981; although the basic method of calculating the amount of retirement allowance payment—by multiplying the number of retirement allowance payment days corresponding to the length of continuous service by the base wage—remained unchanged, the Defendant reorganized the previous three job categories (staff employees (사원), laborers (노무원), and skilled workers (고원)) into two categories, staff employees and laborers, by incorporating skilled workers into the laborer category; the Defendant lowered the number of retirement allowance payment days used to calculate the amount of retirement allowance compared to the previous regulations; and the Defendant also changed the base wage, which had previously been the average wage at the time of retirement as defined under the Labor Standards Act (근로기준법), by limiting it, for staff employees, to the daily average amount of the sum of the basic salary, bonuses, and statutory allowances (overtime, holiday work, and annual/monthly leave allowances) plus the coal development allowance for the three months preceding retirement, and for laborers and skilled workers, to the daily average amount of the sum of the basic salary, bonuses, statutory allowances, underground work allowance, holiday allowance, and production incentive allowance for the three months preceding retirement. The court below thus found that the amended retirement allowance regulations were less favorable to the employees than the regulations prior to amendment, both in terms of the calculation of retirement allowance payment days and the scope of the base wage used to calculate the retirement allowance. On this premise, the court below held that such an amendment of the retirement allowance regulations, being disadvantageous to the group of employees previously subject to the existing rules of employment, required the consent of that group of employees in order to be valid, and, based on the evidence it adopted, found that there had been explicit consent by the Defendant Corporation's labor union with respect to laborers, rendering the amendment valid as to them, and that the labor union had also given implicit consent with respect to skilled workers; however, as there was no consent of the labor union with respect to staff employees, including the Plaintiffs, the court below held that the amended retirement allowance regulations were invalid as to staff employees.
The above fact-finding and determination by the court below are correct, and no error in misinterpreting the meaning of a declaration of intent or in misapprehending the facts, as argued in the grounds of appeal, can be found in the process. Given that the amended retirement allowance regulations were divided into two categories, staff employees and laborers, even if laborers—who constituted more than 85 percent of all unionized employees—gave their complete consent to the amendment proposal, such consent is effective only with respect to the portion concerning laborers (including skilled workers), and cannot be deemed to constitute valid consent to the amendment proposal as a whole, including the portion concerning staff employees. This ground of appeal is without merit.
(2) The total amount of wages that serves as the basis for calculating average wages includes all money and valuables paid by the employer to the employee as consideration for work, provided that such payments are made continuously and regularly to the employee and the employer is obligated to make such payments under a collective agreement, rules of employment, or the like, regardless of the name given to such payments.
According to the reasoning of the judgment below, the court below found, based on the evidence it adopted, the following facts: the Defendant had, pursuant to its policy, paid a meal subsidy to all employees since April 1, 1979, initially in cash and later, in principle, in kind, by issuing vouchers or meal tickets to be exchanged for food or meals of equivalent value at company stores or cafeterias; the Defendant had paid a fuel subsidy to all employees since April 1, 1985, providing manufactured coal briquettes in kind, in principle, to employees at mining sites, while paying cash to employees working at the head office and other business sites, with the payment criteria set forth in the collective agreement or internal regulations, limited to employees who worked 16 days or more per month; further, the Defendant had, since March 1, 1984, paid a family allowance to all employees for up to three dependents among their spouse, parents, and children, in the amount of 15,000 won per month for a spouse and 7,000 won per month for each parent or child, and had, pursuant to its own policy, paid an amount equivalent to 50 percent of the basic salary twice a year under the name of a "physical fitness allowance"; in addition, the Defendant had paid a fixed amount of technical allowance and mine-work allowance (remote area allowance) to technical staff employees and employees working at mines, had paid an underground work allowance, a type of special work allowance, to employees in accordance with standards set by the labor-management council, and had paid a production incentive allowance to night-shift workers in accordance with standards set forth in the collective agreement. The court below then determined that all of these various allowances, having been paid by the Defendant to all employees regularly and continuously, on a monthly or yearly basis, in accordance with fixed standards set forth in the rules of employment or the Defendant's policy, regardless of their designated names or whether partly paid in kind, constituted money and valuables paid as consideration for work, and were therefore properly included as wages in the calculation of average wages.
The above fact-finding and determination by the court below are all correct, and even taking into account the background and purpose of the payment of each of these allowances, the persons to whom they were paid, the method of payment, and the various other grounds asserted by the Defendant, they cannot be regarded as mere gratuitous benefits provided from a welfare perspective. This ground of appeal is without merit.
Accordingly, all appeals are dismissed, and the costs of appeal are to be borne respectively by the losing parties. This Judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Yoon Young-chul (Presiding Justice), Park U-dong, Lee Jae-seong, Kim Yong-jun