[Plaintiff, Appellant and Appellee]
[Defendant, Appellee and Appellant] Korea Coal Corporation (대한석탄공사), Litigation Representative Attorney Moon Kwang-shin
[Judgment Below] Seoul High Court Judgment 91Na35801 dated May 7, 1992
[Order]
The part of the judgment below concerning the Defendant's loss is reversed, and this part of the case is remanded to the Seoul High Court.
The Plaintiff's appeal is dismissed.
The costs of the dismissed portion of the appeal shall be borne by the Plaintiff.
[Reasoning]
1. As to the grounds of appeal by the Plaintiff's litigation representative (including the supplementary brief on grounds of appeal, to the extent it supplements the grounds of appeal)
(1) According to the reasoning of the judgment below, the court below, citing the judgment of the first instance, found as follows: the Defendant Corporation operates a three-shift system for underground work, including entry/exit time and rest periods, dividing shifts into the first shift (Gap-bang) from 08:00 to 16:00, the second shift (Eul-bang) from 16:00 to 24:00, and the third shift (Byeong-bang) from 24:00 to 08:00 the next day. In the case of the first-shift workers at the Jangseong pit where the Plaintiff worked (second- and third-shift workers work in the same manner), workers arrive at the office at the pit entrance at around 07:20, receive their work clothes and safety lamps, and complete other check-in procedures; from around 07:30, a roughly 10-minute pre-work meeting (chwieophoe) is held, during which workers receive safety training and work instructions from the responsible safety officer and work teams are organized; entry into the pit begins at around 07:40 at the pit entrance; workers board the shaft cage at around 08:00 and then transfer to a man-car underground to enter the pit, completing pit entry by around 08:40 to 08:50; from that time until around 15:20, when the operation of the air compressor stops, workers engage in coal-cutting and tunneling work; after finishing work at around 15:20, workers begin to exit the pit in the manner described above, completing pit exit by around 16:20. The court below also found that during work, underground workers freely take rest breaks of 10 to 20 minutes each near their underground worksite from time to time, and that for lunch, they move to a relatively dust-free main haulage tunnel or similar location, where they rest and eat their packed lunch for about 30 minutes; the total time spent on rest and lunch amounts to more than one hour per day. Based on these findings, the court below determined that the Plaintiff's actual working hours fell short of the 6-hour daily working hours prescribed under the collective agreement, and accordingly rejected the Plaintiff's claim for overtime allowance.
The above factual findings of the court below are found to be justified and are accepted.
Furthermore, as argued by the Plaintiff, the safety training, work instructions, and organization of work teams that constitute the content of the pre-work meeting for underground workers are indispensable for the underground shift system, and can only be conducted under the direction and supervision of the Defendant as the employer; therefore, it is reasonable to include such pre-work meeting time in actual working hours. However, according to the facts found by the court below, even if the approximately 10-minute pre-work meeting time is included in actual working hours, the actual working hours do not exceed the agreed actual working hours of 6 hours. Therefore, it cannot be said that the judgment below contains any illegality due to insufficient deliberation or violation of the rules of evidence in relation to the finding of actual working hours.
(2) The court below, citing the judgment of the first instance, found that there had been an agreement between the Defendant Corporation and the Defendant labor union to exclude the physical fitness allowance (체력단련비) from the "base wage" (기초임금) prescribed by the Defendant Corporation, which serves as the basis for calculating retirement allowance for the period of continuous service on and after January 1, 1981. This finding is justified, and there is no illegality such as misapprehension of facts due to violation of the rules of evidence as argued. This ground is without merit.
2. As to the grounds of appeal by the Defendant's litigation representative
(1) Regarding the meal subsidy
Ordinary wages (통상임금) refer to wages that are paid regularly and uniformly for the quantity or quality of the prescribed work, that is, general wages paid on a fixed and average basis regardless of actual days worked or wages actually received (see this Court's Judgment 90Daka6948 dated November 9, 1990). Such ordinary wages are guaranteed as the minimum for average wages, which may increase or decrease depending on actual working hours or performance under Article 19(2) of the Labor Standards Act (근로기준법), and serve as the basis for calculating overtime, night, and holiday work allowances under Article 46 of the same Act, and dismissal notice allowances under Article 27-2 of the same Act. However, since none of these provisions establish any separate minimum standard other than the applicable rate of increase or number of days of payment, if the validity of an agreement between labor and management to exclude from ordinary wages various allowances that should, by their nature, be included in ordinary wages were to be recognized, the purpose of these provisions—namely, requiring payment of additional allowances for overtime, night, and holiday work, and requiring payment to dismissed employees of the wages they would ordinarily receive for a certain period—would be defeated. Accordingly, an agreement between labor and management to exclude from ordinary wages an allowance that should, by its nature, be included in the ordinary wages prescribed by the Labor Standards Act must be deemed void as a contract establishing working conditions that fall short of the standards set by the Act, under Article 20(1) of the same Act.
The court below, citing the judgment of the first instance, additionally found that the Defendant Corporation had provided employees, on days they reported to work, with meals of a certain value in kind, and to employees who did not receive such meals, coupons of equivalent value usable at the company store. The court below determined that, in light of the conditions and content of payment, the above meal subsidy was paid regularly and uniformly as compensation for labor and thus should be included in ordinary wages. The court below further found that, around February 25, 1982, when the Defendant Corporation raised the meal subsidy in agreement with the labor union, it was agreed that the meal subsidy, being a welfare benefit intended to compensate for the above-normal nutritional loss resulting from employees' work and working conditions rather than being compensation for labor, would be excluded in calculating ordinary and average wages. However, the court below determined that such an agreement to exclude a portion of the amount that should properly be included in ordinary wages, from among the money received by employees as compensation for prescribed or total work, violates Article 20 of the Labor Standards Act and is therefore void.
The above determination of the court below is entirely justified in light of the concept of ordinary wages and the legal principles concerning the relationship between ordinary wages and Article 20(1) of the Labor Standards Act as set forth above, and there is no illegality in misapprehending the legal principles concerning ordinary wages or misinterpreting Article 20(1) of the Labor Standards Act. This ground is without merit.
(2) Regarding the special duty allowance
The court below, citing the judgment of the first instance, found that the Defendant Corporation pays a prescribed daily Class 3 special duty allowance to workers at deep worksites located 600 meters or more below the surface, and determined that, in light of the conditions and content of payment, this allowance was paid regularly and uniformly as compensation for labor and thus should be included in ordinary wages.
Under the aforementioned definition of ordinary wages, payment made "uniformly" is interpreted to include not only payment made to "all employees," but also payment made to "all employees who satisfy a certain condition or standard." However, the "certain condition" referred to here must be a "fixed condition," in light of the concept of ordinary wages, which seeks to calculate a "fixed and average wage." However, the facts found by the court below alone are insufficient to determine whether the Plaintiff worked fixedly and exclusively at a deep worksite 600 meters or more below the surface, and therefore, although the allowance in question may have been paid regularly, it cannot be concluded that it was paid "uniformly." Nevertheless, the court below determined that the allowance was paid "uniformly" and should therefore be included in ordinary wages; such handling cannot escape criticism as constituting a misapprehension of the legal principles concerning ordinary wages, which affected the judgment. This ground is with merit.
(3) Regarding the physical fitness allowance
First, the court below, citing the judgment of the first instance, found that the Defendant Corporation had paid a prescribed annual amount of physical fitness allowance to all employees pursuant to an agreement between labor and management, and determined, in light of the form and conditions of payment, that this allowance constitutes wages under the Labor Standards Act and thus should be included in average wages. This determination is justified (see this Court's Judgments 90Daka23868 dated November 27, 1990, and 90Daka19647 dated December 7, 1990), and there is no illegality in misapprehending the legal principles concerning the calculation of average wages.
Next, the court below found that there had been an agreement between labor and management to exclude the meal subsidy, fuel subsidy, and family allowance from the "average wage" prescribed by the Defendant Corporation, which serves as the basis for calculating retirement allowance for the period of continuous service up to and including December 31, 1980, and to exclude the meal subsidy, fuel subsidy, family allowance, physical fitness allowance, mine work allowance, and special duty allowance from the "base wage" prescribed by the Defendant Corporation, which serves as the basis for calculating retirement allowance for the period on and after January 1, 1981. Based on this finding, the court below rejected the Defendant's argument that there had also been an agreement to exclude the physical fitness allowance from the Defendant Corporation's "average wage" in calculating retirement allowance for the period of continuous service up to and including December 31, 1980.
However, Article 11(1) of the Employee Retirement Allowance Regulations (Defendant's Exhibit No. 1), which the court below found to have been established through consultation between labor and management, provides that "retirement allowance for the period of continuous service up to and including December 31, 1980 shall be calculated by multiplying the number of days of retirement allowance payment, aggregated by period of continuous service according to Appended Tables 2, 3, and 4 for general employees, assistant administrative staff, and technical staff (including contract employees), respectively, by the 'average wage' at the time of retirement." Paragraph (2) of the same Article provides that "the 'average wage' at the time of retirement as prescribed in Paragraph (1) shall be calculated in accordance with the Average Wage Calculation Guidelines (평균임금산정예규) in effect as of December 31, 1980." Although there is no direct evidence as to the content of the Average Wage Calculation Guidelines in effect as of December 31, 1980, according to the entries in Defendant's Exhibit No. 17-2 (Wage Management Guidelines; the same applies to Plaintiff's Exhibit No. 6), Article 7 of the Defendant Corporation's Wage Management Guidelines (effective July 1, 1987) defines wages included in average wages as "base pay, various allowances, and bonuses." Furthermore, according to the entries in Defendant's Exhibit No. 3 (Method of Payment of Wages), it appears that on September 5, 1979, the Defendant Corporation instructed the heads of all its affiliated workplaces to treat the winter health management allowance (later renamed the physical fitness allowance) as a welfare benefit rather than wages. The overall purport of Defendant's Exhibit No. 29 is also that, since the physical fitness allowance was first introduced up to the present, there has been an agreement between labor and management to treat it as a welfare benefit under the Defendant Corporation's wage system rather than as wages.
Given these circumstances, the court below should have examined whether the Average Wage Calculation Guidelines had been established and were in effect as of December 31, 1980, and whether its content included a provision excluding the physical fitness allowance from "average wages." However, without conducting such examination, the court below found that the agreement to exclude the meal subsidy, fuel subsidy, and family allowance applied only to the calculation of retirement allowance for the period of continuous service up to and including December 31, 1980, and consequently concluded that no such agreement existed with respect to the physical fitness allowance. This handling by the court below cannot be said to be free from illegality affecting the judgment, due to misapprehension of facts resulting from violation of the rules of evidence or insufficient deliberation. This ground is with merit.
For the foregoing reasons, the part of the judgment below concerning the Defendant's loss is reversed, and this part of the case is remanded to the court below; the Plaintiff's appeal is dismissed; and the costs of the dismissed portion of the appeal shall be borne by the losing party. This judgment is rendered as stated in the Order, by unanimous opinion of the Justices participating.
Justice Yoon Young-cheol (Presiding Justice), Park Woo-dong (Justice in charge), Kim Sang-won, Park Man-ho