[Plaintiff, Appellant] Plaintiff's Attorney Oh Seung-geun
[Defendant, Appellee] Gangwon Coal Mining Co., Ltd. (강원탄광 주식회사)
[Judgment Below] Seoul High Court Decision 89Na39510 delivered on January 24, 1990
[Order]
The appeal is dismissed.
The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
As to the grounds of appeal argued by the Plaintiff's attorney,
1. According to Article 31, Paragraph 1 of the Enforcement Decree of the Labor Standards Act (근로기준법시행령), "ordinary wage" means the hourly wage amount, daily wage amount, monthly wage amount, or piece-rate amount that has been determined to be paid regularly and uniformly for prescribed work or total work performed by an employee. This ordinary wage guarantees the minimum level of the average wage, which serves as the standard for calculating retirement allowances, leave-of-absence allowances, and various types of disaster compensation under the Labor Standards Act (근로기준법) (Article 19, Paragraph 2 of the Labor Standards Act), serves as the basis for calculating premium wages such as overtime, night work, and holiday work allowances (Article 46 of the same Act), and serves as the basis for calculating dismissal notice allowances (Article 27-2, Paragraph 1 of the same Act) and annual paid leave allowances (Article 48, Paragraphs 2 and 3 of the same Act). In light of the institutional purpose for which the Labor Standards Act introduced the ordinary wage system, ordinary wage can be defined as wages determined to be paid regularly and uniformly for the quantity or quality of prescribed work, that is, general wages paid on a fixed and average basis regardless of the actual number of days worked or the wages actually received (see this Court's Decision 78Da1372 delivered on October 10, 1978).
The court below, in determining the concept and scope of ordinary wages in this case, premised its judgment on the need to comprehensively consider the institutional significance of the ordinary wage system, the practices of wage agreements and payment in the industry, the particular wage systems of each enterprise and the actual state of collective bargaining and agreements between labor and management, whether the Plaintiff belonged to a labor union, the Plaintiff's occupation and form of work, the customary practices of the labor administration authorities' administrative guidance in the past, and the circumstances leading to the legal dispute between the parties. The court below then held that, generally speaking, wages paid regardless of the quality or quantity of ordinary work (e.g., family allowance, child education allowance, etc.), wages whose amount varies depending on actual work performance or attendance record (various statutory allowances, attendance incentive allowance, etc.), and wages that cannot be regarded as consideration for prescribed working hours (bonuses and other wages paid on a unit of one month or longer) should be excluded from the scope of calculation of ordinary wages. The court below further explained that, in light of the Defendant company's wage payment agreements and actual practice, the basic pay (determined under the piece-rate system), the attendance allowance, port-entry allowance, and lunch allowance (determined under the daily wage system), and the company housing allowance (determined under the monthly wage system) are basic pay and equivalent allowances determined to be paid for the quality or quantity of ordinary work, and are wages whose fixed and average payment is guaranteed uniformly every month, and therefore all fall within the concept and scope of ordinary wages. However, the court below took a different view with respect to the attendance incentive allowance and fuel allowance claimed by the Plaintiff. That is, based on the evidence it adopted, the court below found the following facts: under its collective agreement, the Defendant company provided that a fuel allowance—an amount converted into cash based on a prescribed number of briquettes graduated according to the number of days worked per month (for example, for those who worked 18 or more days per month, cash equivalent to 130 briquettes; for those who worked 7 or more but fewer than 14 days per month, cash equivalent to 60 briquettes; and no such allowance for those who worked 6 days or fewer)—was to be paid to union members; and the Defendant company also provided that its employees be paid a prescribed attendance incentive allowance graduated according to the number of days worked per month, but that employees who worked 14 days or fewer per month were not to receive this allowance. Based on these findings, the court below determined that this form of wage payment, since the amount paid varies according to actual work performance or attendance record, is not a wage paid regularly and uniformly as consideration for the quality or quantity of work, but rather is in the nature of a wage intended to encourage employees to attend work, and therefore, absent other special circumstances, these allowances cannot be included within the scope of calculation of ordinary wages. Such determination by the court below is justified as a matter of interpretation regarding the concept of ordinary wage as defined in Article 31 of the Enforcement Decree of the Labor Standards Act and the scope of wages forming the basis for its calculation, and is also consistent with the contents of the Ministry of Labor's Directive No. 150 on Guidelines for Calculating Ordinary Wages (통상임금산정 지침), enacted on January 14, 1988 to clarify the provisions of the above Enforcement Decree. Accordingly, it cannot be said that the judgment below contains an error in the interpretation of law as pointed out in the argument. This ground of appeal is without merit.
2. According to the reasoning of the judgment below, the court below, in calculating the hourly ordinary wage with respect to the company housing allowance determined as a monthly wage amount, recognized that the formula would ultimately be (amount of company housing allowance ÷ 6) × (365/12). This is in accordance with Article 31, Paragraph 2 of the Enforcement Decree of the Labor Standards Act and is therefore justified, and it cannot be said that there was any illegality in the method of calculating the hourly rate of ordinary wage as argued in the appeal. This ground of appeal is without merit.
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Yoon Young-cheol (Presiding Justice), Park Woo-dong, Lee Jae-seong, Kim Yong-jun