[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 879 others (as listed in the list of plaintiffs in [Attachment 1]) (Attorneys of Law Firm Yeoneun and 1 other, Counsel for the plaintiffs)
[Plaintiffs, Appellees] Plaintiff 881 and 38 others (as listed in the list of plaintiffs in [Attachment 2]) (Law Firm Yeoneun, Attorneys Kim Se-hui and 2 others, Counsel for the plaintiffs)
[Defendant, Appellee and Appellant] Korea Hydro & Nuclear Power Co., Ltd. (Attorney Kim Yong-deok and 4 others, Counsel for the defendant)
[Judgment Below] Seoul High Court Judgment 2017Na2016158, decided January 13, 2023
[Order]
The part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the Seoul High Court. All appeals by the Plaintiffs are dismissed.
[Reasoning]
The grounds of appeal (including the contents of the reference briefs submitted after the filing period, to the extent they supplement the grounds of appeal) are examined.
1. Legal principles concerning ordinary wages – in the case of wages with an attached continued-employment condition and performance-based pay
Article 6(1) of the Enforcement Decree of the Labor Standards Act (근로기준법 시행령) defines ordinary wages as "the hourly wage amount, daily wage amount, weekly wage amount, monthly wage amount, or piece-rate amount agreed to be paid regularly and uniformly to an employee for prescribed working hours or total working hours." If the concept of ordinary wages is interpreted faithfully to the text and purpose of the statute, ordinary wages refer to wages agreed to be paid regularly and uniformly as consideration for prescribed work. Wages that are set to be paid regularly and uniformly as consideration for an employee's full performance of prescribed work constitute ordinary wages regardless of the existence or likelihood of fulfillment of any condition attached thereto. A condition attached to wages may be considered as one of the factors negating the compensatory nature for prescribed work, regularity, or uniformity in the process of substantively determining the objective nature of the wage in question, but the mere fact that fulfillment of the condition is uncertain cannot be deemed to negate the status of the wage as ordinary wages.
Since ordinary wages are a conceptual tool reflecting the value of prescribed work as distinguished from actual work performed, they must be calculated based on an employment relationship premised on the continuous provision of prescribed work. An employee's continued employment (재직) is a natural prerequisite for providing prescribed work under an employment contract. Accordingly, the mere fact that a condition is attached requiring that an employee be in service at a specific point in time in order to receive certain wages (hereinafter "continued-employment condition") does not negate the compensatory nature for prescribed work or the status as ordinary wages of that wage.
Performance-based pay paid according to an employee's work performance is not paid simply because prescribed work was provided, but rather is paid only when a certain level of work achievement is attained or an evaluation result reaches a certain standard; therefore, it is generally difficult to regard such pay as having "compensatory nature for prescribed work." Accordingly, performance-based pay in this pure sense cannot be regarded as ordinary wages. However, where it is determined that a minimum fixed amount will be paid regardless of work performance, that amount (hereinafter the "minimum guaranteed portion") constitutes consideration for prescribed work (see Supreme Court en banc Decision 2020Da247190, decided December 19, 2024, etc.). Even if performance-based pay determined according to an employee's work performance in the preceding year is paid in the current year, if only the timing of payment is set as the current year, such performance-based pay constitutes wages for the preceding year. Since ordinary wages must be capable of being calculated before overtime, night, or holiday work is provided, whether there is a minimum guaranteed portion with respect to performance-based pay that constitutes wages for the preceding year must be determined based on the preceding year, which is the period for which the pay is given, rather than the current year, which is merely the time of payment; and if there is a minimum guaranteed portion, it constitutes consideration for prescribed work in the preceding year and thus constitutes ordinary wages for the preceding year.
2. Whether the basic bonus with an attached continued-employment condition constitutes ordinary wages (Defendant's first ground of appeal)
A. Judgment of the court below
According to the reasoning of the judgment below, the Defendant's collective agreement, Remuneration Regulations, etc. provide that a basic bonus equivalent to 300% per annum of the standard wage, including base pay, is to be divided and paid at certain intervals during the year, and, with respect to the recipients thereof, provide that "only persons who are in service as of the payment reference date shall be eligible, and persons who have retired or are on suspension or leave of absence shall be excluded."
The court below rejected the Defendant's argument that fixity was negated on the premise that a continued-employment condition was attached, on the ground, among others, that if the continued-employment condition attached to the basic bonus were interpreted to mean that even the portion corresponding to work already provided by an employee who has retired or is on suspension or leave of absence prior to the payment date would not be paid, such condition would be invalid; and the court below determined that the basic bonus constitutes ordinary wages.
B. Judgment of the Supreme Court
1) The continued-employment condition attached to the basic bonus merely determines the recipients of payment, and it is difficult to regard it as causing an employee to forfeit or be deprived of wages already determined to be paid on the ground that the employee is not in service at a specific point in time; therefore, absent special circumstances, it cannot be deemed invalid (see Supreme Court Decision 2019Da204876, decided January 23, 2025). However, as discussed above, a basic bonus that consists of a fixed amount determined in linkage with base pay, etc. and divided and paid at fixed intervals constitutes ordinary wages paid regularly and uniformly as consideration for prescribed work, notwithstanding the continued-employment condition.
2) Although the part of the judgment below that determined the continued-employment condition to be invalid on the premise that fixity is a conceptual indicium of ordinary wages is not appropriate, the conclusion recognizing the basic bonus as ordinary wages is justified. There is no error in the judgment below that misapprehended the legal principles concerning ordinary wages, etc. and thereby affected the judgment.
3. Whether the basic performance pay (internal evaluation pay) constitutes ordinary wages (Defendant's second ground of appeal)
A. Judgment of the court below
The court below, on the premise that the basic performance pay (renamed "internal evaluation pay" on January 15, 2013; hereinafter referred to as "basic performance pay" without distinguishing before and after the name change) is wages for the period from December 16 of the year before last to December 15 of the preceding year, with only the timing of payment set as the current year, determined that the entire basic performance pay was a guaranteed payment amount with fixity recognized and thus constituted ordinary wages, on the grounds that: the Defendant's Remuneration Regulations expressly specify the payment rate as 200% of the standard wage; and the basic performance pay was converted from the minimum guaranteed portion (200% of the standard wage) of the incentive pay that had customarily been paid for more than 10 years, such that the payment rate could not be changed to be less favorable than that.
B. Judgment of the Supreme Court
However, the judgment below is difficult to accept for the following reasons.
1) According to the reasoning of the judgment below and the evidence duly admitted and examined by the court below, the following facts may be found.
A) Article 22 of the Defendant's Remuneration Regulations dated May 18, 2010 (hereinafter the "former Remuneration Regulations") provided that bonuses are divided into basic bonus and incentive pay (paragraph 1); the annual payment rate of incentive pay is to be determined by decision of the Korea Electric Power Corporation Management Evaluation Committee, etc. (paragraph 3); and detailed payment standards for bonuses are to be separately prescribed, provided that where there is a government directive or the president deems it necessary, the payment standards may be changed (paragraph 4).
B) From 2002 to 2011, the Defendant paid employees incentive pay of 313–500% of the standard wage based on evaluations by the Korea Electric Power Corporation, during which period the Defendant's evaluation ranking was at times the lowest.
C) The Defendant, as an "other public institution" under the Act on the Management of Public Institutions (공공기관의 운영에 관한 법률, hereinafter the "Public Institutions Management Act"), had been subject to management evaluation by the Korea Electric Power Corporation, but on January 24, 2011, it was designated as a "market-type public enterprise" and became subject to management performance evaluation by the Minister of Economy and Finance.
D) In June 2010, the Ministry of Economy and Finance recommended to public enterprises and quasi-governmental institutions that "the proportion of performance-based annual salary to total annual salary be operated at 20–30% or more (30% or more for public enterprises), and that the differential in performance-based annual salary between the highest and lowest grades be set at a minimum of twofold" (hereinafter the "2010 Recommendation").
E) The "2012 Budget Formulation Guidelines for Public Enterprises and Quasi-Governmental Institutions" (hereinafter the "2012 Guidelines"), announced by the Minister of Economy and Finance on November 11, 2011 pursuant to Article 50(1) of the Public Institutions Management Act, provided that, for former investment institutions such as the Defendant, the existing management evaluation performance pay (200–500% of monthly base pay) was to be changed and divided into management evaluation performance pay (0–300% of monthly base pay) and in-house performance pay (200% of monthly base pay); in-house performance pay was defined as "performance pay differentially paid according to achievements, performance, etc. through internal institutional evaluation," and its funding source was to be the conversion of existing personnel expenses, including fixed bonuses, from the existing management evaluation performance pay funding source.
F) The Defendant decided to introduce and implement the in-house performance pay and management evaluation performance pay systems under the 2012 Guidelines under the names "basic performance pay" and "management performance pay," respectively, and on January 13, 2012, amended its Remuneration Regulations and the Enforcement Rules of the Remuneration Regulations (hereinafter the "amended Remuneration Regulations" and "amended Enforcement Rules of the Remuneration Regulations," respectively), the main contents of which are as follows.
(1) Bonuses are divided into basic bonus, basic performance pay, and management performance pay; the annual payment rate of basic performance pay is, in principle, 200%, paid at 100% each for the first and second halves of the year; and detailed payment standards for bonuses are to be separately prescribed, provided that where there is a government directive or the president deems it necessary, the payment standards may be changed (Article 22(1), (3), (5) of the amended Remuneration Regulations).
(2) The attendance calculation period for basic performance pay is from December 16 of the year before last to December 15 of the preceding year (hereinafter referred to as the "preceding year," with only the preceding year indicated when specifying the period); the recipients are limited to those in service as of the payment reference dates (June 15 and December 15 of the preceding year); and newly hired employees are not paid basic performance pay in their year of employment but are paid a pro-rated amount calculated based on their period of service in the following year (Article 19(1), (3) and Article 22 of the amended Enforcement Rules of the Remuneration Regulations). Basic performance pay may be paid on a differential basis by workplace and by individual, and the detailed matters concerning such differential payment are to be separately determined by the president (Article 26 of the amended Enforcement Rules of the Remuneration Regulations).
G) In 2012, the Defendant paid employees basic performance pay for 2011 in an amount equivalent to a total of 200% of the standard wage, but in 2013, it paid basic performance pay for 2012 on a differential basis in amounts equivalent to 133–267% of the standard wage.
2) The above facts are examined in light of the legal principles set forth above.
A) According to the amended Remuneration Regulations, since basic performance pay constitutes wages for the preceding year, as recognized by the court below, whether there is a minimum guaranteed portion must be determined based on the preceding year, which is the period for which the pay is given.
B) However, even assuming, as the court below premised, that the amount equivalent to 200% of base pay among the incentive pay for the period up to and including 2010 (paid in 2011) constitutes the minimum guaranteed portion, and that the Defendant's basic performance pay is funded from this source, Article 22(4) of the former Remuneration Regulations expressly provided that the Defendant could change the payment standards for bonuses, including incentive pay, where there was a government directive. At the time of 2011, the first period for which basic performance pay was to be given, the Defendant had already been designated as a market-type public enterprise and was in a situation where it was required, pursuant to government directives such as the Ministry of Economy and Finance's 2010 Recommendation and the 2012 Guidelines, to introduce basic performance pay and to pay performance-based annual salary, including basic performance pay and management performance pay, on a differential basis. In these circumstances, it is reasonable to view that the Defendant could, pursuant to the express provision of Article 22(4) of the former Remuneration Regulations, change the payment standards for basic performance pay to one of differential payment without maintaining the minimum guaranteed portion of the existing incentive pay, and it is difficult to regard such a change in payment standards as impermissible as being contrary to labor practice, etc.
C) The amended Remuneration Regulations and amended Enforcement Rules of the Remuneration Regulations provide that, while the payment rate of basic performance pay is, in principle, set at 200%, it may be paid on a differential basis by workplace and by individual, and the Defendant in fact paid the basic performance pay for 2012 on a differential basis ranging from 133% to 267%. Accordingly, the minimum guaranteed portion of basic performance pay cannot be regarded as being equal to 200% of the standard wage, in the same manner as the incentive pay.
3) Nevertheless, the court below determined that the entire 200% of the standard wage constituted the minimum guaranteed portion of the basic performance pay. This determination by the court below contains an error that affected the judgment, in that it failed to properly examine the portion determined to be paid as a minimum regardless of work performance, and thereby exceeded the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience.
4. Whether the management performance pay, in-house performance pay, and long-service incentive pay constitute ordinary wages (Plaintiffs' first, second, and third grounds of appeal)
The court below determined that the following do not constitute ordinary wages: ① management performance pay, the annual payment rate of which is determined according to the results of the public institution management evaluation for the preceding year's performance; ② the in-house performance pay newly established under the Remuneration Regulations and Enforcement Rules of the Remuneration Regulations amended on January 15, 2013, paid in December 2013 (20% of the standard wage), and the portion of the in-house performance pay paid in December 2014 exceeding a payment rate of 20% (17% of the standard wage); and ③ the long-service incentive pay paid every five years of continuous service to employees who have served for 10 years or more.
Examining the reasoning of the judgment below in light of the relevant legal principles, although the part of the judgment below that determined whether the above allowances constitute ordinary wages on the premise that fixity is a conceptual indicium of ordinary wages is not appropriate, the judgment below's determination rejecting the status of each of the above allowances as ordinary wages is, as a result, justified. There is no error in the judgment below that misapprehended the legal principles concerning ordinary wages, as alleged in the Plaintiffs' grounds of appeal, and thereby affected the judgment.
5. Scope of reversal
The part of the judgment below against the Defendant, concerning the claim for statutory allowances calculated by including the entire 200% of the standard wage as basic performance pay in ordinary wages, contains the grounds for reversal discussed above. The court below, upon remand, needs to further examine and determine the scope of the minimum guaranteed portion of basic performance pay in light of the purport of this reversal, and recalculate ordinary wages and the amount of statutory allowances to be awarded on that basis (it is noted, however, that if there is a minimum guaranteed portion of basic performance pay, since it constitutes consideration for prescribed work in the preceding year, it must, absent special circumstances, be included in ordinary wages for the preceding year rather than the current year). If the amount of statutory allowances changes, the scope of the retirement pay claim to be awarded may also change accordingly. Accordingly, the part of the judgment below against the Defendant, including the retirement pay claim portion, is to be reversed in its entirety.
6. Conclusion
The part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the court below for further examination and determination; and the Plaintiffs' appeals are dismissed as being without merit. This Judgment is rendered as set forth in the Order by the unanimous opinion of the Justices involved.
[Attachment 1] List of Plaintiffs: Omitted
[Attachment 2] List of Plaintiffs: Omitted
Justices Shin Suk-hee (Presiding Justice), Noh Tae-ak (Justice in charge), Seo Kyung-hwan, Ma Yong-ju