[Plaintiffs, Appellants] As indicated in the list of plaintiffs in the attached annex. (Litigation representative: Y.K. Law LLC, attorneys in charge Cho In-seon and 2 others)
[Defendant, Appellee] ○○○ Transportation Co., Ltd. (Litigation representative: Attorney Lee Yeon-rang)
[Judgment Below] Suwon High Court Decision 2019Na11278 decided September 17, 2020
[Order]
Among the portions of the judgment below in which the Plaintiffs lost, the portions other than the claim for extended work allowance based on work exceeding 40 hours per week are reversed, and this portion of the case is remanded to the Suwon High Court. The remainder of the Plaintiffs' appeal is dismissed.
[Reasoning] The grounds of appeal are examined.
1. Whether the payments constitute ordinary wages (First Ground of Appeal)
A. Legal principles concerning ordinary wages
1) Article 6(1) of the Enforcement Decree of the Labor Standards Act (근로기준법 시행령) provides that ordinary wages means "the hourly wage amount, daily wage amount, weekly wage amount, monthly wage amount, or piece-rate amount determined to be paid regularly and uniformly to a worker for prescribed work or total work." Interpreting the concept of ordinary wages faithfully to the definition and purpose of the statute, ordinary wages refer to wages determined to be paid regularly and uniformly as consideration for prescribed work. Wages determined to be paid regularly and uniformly as consideration for a worker's full provision of prescribed work constitute ordinary wages regardless of the existence or fulfillment possibility of any conditions attached thereto. A condition attached to wages may be considered as one factor negating the character of consideration for prescribed work, regularity, or uniformity in the process of substantively determining the objective nature of the relevant wage, but the mere circumstance that the fulfillment of the condition is uncertain cannot be deemed to negate the ordinary-wage character of the relevant wage.
Since ordinary wages are a conceptual tool reflecting the value of prescribed work as distinguished from actual work, they must be calculated based on an employment relationship that presupposes the continuous provision of prescribed work. A worker's continued employment ("being in service") is a natural prerequisite for providing prescribed work under the employment contract. "Retirement" is merely a cause, along with the arrival of the mandatory retirement age, death, dismissal, etc., that terminates the employment relationship and cuts off the provision of actual work; conceptually, it has no relation to the consideration for the work that the worker and employer agreed would be provided during prescribed working hours. Therefore, the mere circumstance that a condition is attached requiring that a worker be in service at a specific point in time in order to receive certain wages (hereinafter the "service condition") does not negate the character of that wage as consideration for prescribed work or its ordinary-wage character (see Supreme Court en banc Decision 2020Da247190 decided December 19, 2024).
2) Even if a condition is attached to certain wages requiring that a certain number of working days be satisfied for payment (hereinafter the "working-days condition"), where such condition is one that a worker who fully provides prescribed work would satisfy—that is, where the required number of working days is set within the number of prescribed working days—the mere fact that such a condition is attached does not negate the ordinary-wage character of that wage. Even if a worker's actual number of working days falls short of the prescribed working days such that the worker fails to receive the wage subject to the working-days condition, so long as the wage possesses the character of consideration for prescribed work, regularity, and uniformity, it must be included in ordinary wages for the purpose of calculating statutory allowances for extended, night, and holiday work. This is because ordinary wages are a standard wage determined to reflect the value of prescribed work regardless of the actual number of working days or the wages actually received. By contrast, wages subject to a working-days condition that exceeds the number of prescribed working days are not paid merely because prescribed work was provided, but rather as consideration for additional work beyond the prescribed work, and therefore do not constitute ordinary wages (see Supreme Court en banc Decision 2023Da302838 decided December 19, 2024).
B. Determination as to this case
1) Facts and the judgment below
A) According to the reasoning of the judgment below and the record, it can be seen that in the wage agreement and labor-management agreement concluded between the Defendant, which operates an urban bus passenger transport business, and the labor union, the Defendant set the working pattern of its employees as alternating-day shifts with 13 prescribed working days per month, and provided that the Defendant would pay its employees: ① a duty allowance, seniority allowance, discretionary allowance, and diligence allowance where the employee worked 5, 8, or 11 or more days per month; ② a summer vacation allowance where the employee was in service as of the payment date and had worked 3 or more months prior to the payment date; ③ a bonus and Lunar New Year/Chuseok bonus where the employee was in service as of the payment date and had worked 30 or more days out of a 90-day reference period; and ④ a special allowance where the employee achieved an accident-free record for 1 year, was in service as of the payment date, and had worked 80% or more of the year, and a no-accident allowance where, in the event of a traffic accident, the employee's fault was 20% or less and the employee had worked 12 or more days per month (hereinafter the items of wages under ① through ④ above are collectively referred to as "the wage items at issue in this case").
B) The Plaintiffs, who are current or former employees of the Defendant, claimed unpaid extended work allowance and night work allowance on the premise that the wage items at issue in this case constitute ordinary wages. The court below held that the above service condition and working-days condition were valid, and that since the wage items at issue in this case had conditions attached thereto negating their fixedness, none of them constituted ordinary wages.
2) Determination by the Supreme Court
A) Validity of the conditions and the agreement attaching the conditions
For the following reasons, the judgment of the court below—that the agreement attaching a service condition or working-days condition to the wage items at issue in this case cannot be deemed to violate a mandatory provision of law or to constitute an evasive act aimed at denying the ordinary-wage character of the wage items at issue in this case—is justified.
(1) An employer and workers may freely determine the wage structure and system, the types and content of individual wage items, and the total amount of wages, and may freely attach conditions relating to wages. Such conditions are valid unless a separate ground for invalidity exists, such as violation of a mandatory provision or constituting an evasive act (see Supreme Court en banc Decision 2020Da247190 decided December 19, 2024). Where labor and management, in the course of forming the content of certain wages, attach a condition requiring that a worker be in service at a specific point in time or satisfy a certain number of working days in order to receive that wage, this, in principle, amounts to setting the standard for payment of the wage or defining the persons eligible for payment, rather than causing the worker to forfeit or be deprived of wages that had already been determined to be paid, merely because the worker was not in service at a specific point in time or did not satisfy the required number of working days. Therefore, absent special circumstances, such a condition is difficult to deem invalid. Nor can a labor-management agreement attaching a service condition or working-days condition to wages be deemed to compel, through unjust means, labor contrary to the worker's free will.
(2) Considering the special characteristics of the Defendant's business and working pattern—operating urban buses, a form of public transportation, on fixed routes without disruption under a shift-work system—it is determined that there is a managerial necessity to attach a service condition or working-days condition to wages in order to secure stable provision of labor. There are no other circumstances suggesting that such conditions were attached solely with the intent of excluding the wage items at issue in this case from ordinary wages.
B) Whether the payments constitute ordinary wages
In light of the legal principles set forth above, the special allowance and no-accident allowance under item ④ above require, in addition to the provision of prescribed work, the satisfaction of additional payment requirements such as an "accident-free record" or that "in the event of a traffic accident, the employee's fault is below a certain percentage," and therefore lack the character of consideration for prescribed work and cannot be deemed to constitute ordinary wages. Accordingly, the conclusion of the court below that the special allowance and no-accident allowance do not constitute ordinary wages is justified, and there is no error of misapprehension of legal principles affecting the judgment.
By contrast, the service condition attached to the remaining wage items, or the condition requiring a number of working days fewer than the prescribed working days, is merely a condition that a worker who fully provides prescribed work would satisfy, and therefore the mere fact that such a condition is attached cannot be deemed to negate the ordinary-wage character of that wage. Nevertheless, without examining whether the above wage items possess the character of consideration for prescribed work, regularity, and uniformity, the court below, premising fixedness as a conceptual indicium of ordinary wages, determined that the above wage items did not constitute ordinary wages solely on the ground that a service condition or working-days condition was attached thereto. This judgment of the court below is erroneous in that it misapprehended the legal principles concerning ordinary wages and failed to conduct the necessary examination.
2. Whether a claim for extended work allowance based on work exceeding 40 hours per week may be made (Second Ground of Appeal)
The court below, having found that extended work allowance calculated by applying a 50% premium rate had been paid for the 9 hours exceeding the statutory working hours of 8 hours out of the 17 hours of daily work, dismissed the Plaintiffs' claim for extended work allowance based on work exceeding 40 hours per week, on the grounds, among others, that there was no proof of extended work beyond the recognized working hours, and that extended work allowance could not be claimed in duplicate for work exceeding the statutory working hours of 8 hours per day and work exceeding the statutory working hours of 40 hours per week.
In light of the relevant legal principles and the record, this judgment of the court below contains no error, such as misapprehension of the legal principles concerning extended work allowance as argued in the grounds of appeal, that affected the judgment.
3. Scope of reversal
The portion of the judgment below in which the Plaintiffs lost, insofar as it determined that the duty allowance, seniority allowance, discretionary allowance, diligence allowance, summer vacation allowance, bonus, and Lunar New Year/Chuseok bonus do not constitute ordinary wages, contains the grounds for reversal set forth above. The court below, after remand, needs to calculate the statutory ordinary wage in light of the purport of this reversal, and, on that basis, calculate the difference in unpaid extended work allowance and night work allowance. Accordingly, the entirety of the portion of the judgment below in which the Plaintiffs lost, other than the claim for extended work allowance based on work exceeding 40 hours per week, must be reversed.
4. Conclusion
The portion of the judgment below in which the Plaintiffs lost, other than the claim for extended work allowance based on work exceeding 40 hours per week, is reversed, and this portion of the case is remanded to the court below for further hearing and determination; and since the remainder of the Plaintiffs' appeal is without merit, it is dismissed. Therefore, it is so decided as set forth in the Order by the unanimous opinion of the participating Justices.
[Annex] List of Plaintiffs: Omitted
Justice Lee Sook-yeon (Presiding Justice), Lee Heung-gu, Oh Seok-jun (Justice in Charge), Eom Sang-pil