[Plaintiffs, Appellees] Plaintiff 1 and 13 others (Legal representative: Donginn LLC, Attorneys Sung Chang-seok and 2 others)
[Defendant, Appellant] ○○○ Co., Ltd. (Legal representative: Gate Law LLC, Attorneys Yoon Young-sun and 5 others)
[Judgment Below] Seoul High Court Decision 2022Na2051094 rendered on November 10, 2023
[Order]
All appeals are dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal (including the supplementary appellate brief filed after the submission period, to the extent it supplements the original grounds) are examined as follows.
1. As to the First and Second Grounds of Appeal
A. Relevant Legal Principles
1) An employee bears the duty to work during the agreed contractual working hours (소정근로시간), and the employer pays wages in return for the performance of that duty to work. As long as the standard working hours are not exceeded, the employer and employee may, in principle, freely agree upon the contractual working hours according to their free will. However, where the determination of contractual working hours can be evaluated as being merely a formality, or where there are special circumstances such that the contractual working hours were set with the intent of evading the application of labor relations laws and regulations, the effect of such agreement on contractual working hours must be denied.
Considering comprehensively the content and structure of Article 32, Paragraph 1 of the Constitution (헌법) and the relevant provisions of the Minimum Wage Act (최저임금법), the legislative intent and legislative history of Article 6, Paragraph 5 of the Minimum Wage Act as amended by Act No. 8964 on March 21, 2008 (hereinafter "the special provision at issue"), the purport of the provisions of the Passenger Transport Service Act (여객자동차 운수사업법) and the public nature of the general taxi transport business, and the circumstances surrounding the agreement to shorten contractual working hours, in cases where, under the fixed-amount cash quota system (정액사납금제), an employer, with the intent of avoiding a situation in which the fixed wage excluding wages based on production performance falls short of the minimum wage, agrees with the taxi drivers' labor union merely to shorten the contractual working hours—without any actual change in the form of work or operating hours—in order to increase the nominal amount of the hourly fixed wage calculated based on the contractual working hours, such an agreement must be deemed void as an unlawful act intended to circumvent the application of the special provision at issue, which is a mandatory statutory provision (see Supreme Court en banc Decision 2016Da2451 rendered on April 18, 2019, etc.). Furthermore, the specific circumstances showing that an agreement to shorten contractual working hours constitutes an unlawful act must be asserted and proven by the party claiming that the agreement is void.
2) Whether an agreement to shorten contractual working hours made under the fixed-amount cash quota system is void as an unlawful act must be determined from a normative perspective, focusing on whether the main purpose of the parties to the labor relationship who entered into the agreement was to evade the application of the Minimum Wage Act, as well as on whether there is a substantial discrepancy between the shortened contractual working hours and the actual working hours of the taxi driver. Whether the main purpose of shortening the contractual working hours was to evade the application of the Minimum Wage Act must be determined by considering the specific circumstances and timing of the agreement to shorten the contractual working hours, and the objective difference and trend of change between the hourly wage used for comparison, as calculated by applying the contractual working hours before and after the shortening, and the statutory minimum wage.
The actual working hours of a taxi driver is a concept encompassing not only the operating time during which the taxi carries passengers (actual driving time) but also the time during which the taxi driver actually provides labor, such as the preparation time required for entering and leaving the garage and organizing the vehicle, and the waiting time spent searching for or waiting for passengers (vacant driving time, excluding, however, meal and rest periods), and must be estimated by considering the actual working environment and form of work of the taxi driver. Furthermore, in cases where it may be found that the actual working hours of the taxi driver have partially decreased, in determining whether there is a substantial discrepancy between such decreased actual working hours and the shortened contractual working hours, the ratio, frequency, and abruptness of the reduction in contractual working hours must be considered (see Supreme Court Decision 2023Da279402, 280563 rendered on May 30, 2024, etc.).
2. Determination
The court below determined, for the reasons stated in its judgment, that the agreements between the Defendant and the Defendant's labor union to shorten the contractual working hours through the 2015, 2018, and 2019 wage agreements were void as unlawful acts intended to circumvent the application of Article 6, Paragraph 5 of the Minimum Wage Act, which is a mandatory statutory provision, and therefore the amount of wages falling short of the minimum wage should be calculated for the Plaintiffs by applying the contractual working hours set forth in the 2013 wage agreement.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, the determination of the court below on this point is justified, and there is no error, as alleged in the grounds of appeal, that misapprehended the legal principles regarding the effect of the agreement to shorten contractual working hours or the contractual working hours that serve as the basis for calculating the amount falling short of the minimum wage when the agreement to shorten contractual working hours is void, thereby affecting the judgment.
2. As to the Third Ground of Appeal
A. Relevant Legal Principles
Article 106-7, Paragraph 1 of the Restriction of Special Taxation Act (조세특례제한법) provides: "For general taxi transport business operators (hereinafter in this Article referred to as 'general taxi transport business operators') under the Passenger Transport Service Act and the Enforcement Decree thereof, 99/100 of the value-added tax payable shall be reduced up to and including the taxable period ending on or before December 31, 2026." Paragraph 2 thereof provides: "A general taxi transport business operator shall, out of the reduced tax amount under Paragraph 1, pay in cash an amount equivalent to 90/100 of the value-added tax payable to general taxi transport service workers (hereinafter in this Article referred to as 'general taxi transport service workers') under the Passenger Transport Service Act within one month (hereinafter in this Article referred to as the 'payment period') from the end of the final return and payment deadline for the reduced value-added tax, as determined by the Minister of Land, Infrastructure and Transport. In such cases, the general taxi transport business operator shall inform the general taxi transport service worker that the cash being paid is the 'value-added tax reduction amount.'"
This provision was established for the purpose of promoting the substantive improvement of the treatment of general taxi transport service workers by having the 'value-added tax reduction amount' paid to them in cash. Considering comprehensively the content of this provision, its legislative history and purpose, and its institutional purport, it is reasonable to view that the 'value-added tax reduction amount' paid in cash to general taxi transport service workers is paid for the improvement of their treatment and welfare, and therefore constitutes "wages paid for the living assistance and welfare of employees," which, pursuant to Item 2 of the proviso to Article 5-3 of the Enforcement Decree of the Minimum Wage Act (최저임금법 시행령), is not included in calculating the minimum wage of drivers employed in the general taxi transport business (see Supreme Court Decision 2012Du22003 rendered on February 26, 2015, etc.).
B. Determination
The court below determined, for the reasons stated in its judgment, that the advance payment corresponding to the value-added tax reduction amount is not included in the wages used for comparison in calculating the minimum wage.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, the determination of the court below on this point is justified, and there is no error, as alleged in the grounds of appeal, that misapprehended the legal principles regarding the scope of wages included in the minimum wage of general taxi transport service workers or the applicability by analogy of Article 6, Paragraph 4 of the Minimum Wage Act.
3. As to the Fourth Ground of Appeal
A. Relevant Legal Principles
Ordinary wages (통상임금) refer to wages determined to be paid regularly and uniformly as consideration for contractual work. Wages determined to be paid regularly and uniformly as consideration where an employee fully performs the contractual work constitute ordinary wages regardless of the existence or possibility of fulfillment of any condition attached thereto. A condition attached to wages may be considered as one of the factors that negates the character of consideration for contractual work, regularity, or uniformity in the process of substantively determining the objective nature of the relevant wage, but the mere fact that fulfillment of the condition is uncertain cannot be deemed to negate the character of the wage as ordinary wages (see Supreme Court en banc Decision 2020Da247190 rendered on December 19, 2024).
Even if a certain wage is subject to a condition requiring that a certain number of working days be satisfied for payment (hereinafter "the working-day condition"), where such condition is one that would be satisfied by an employee who fully performs the contractual work—that is, where the working-day condition is set within the number of contractual working days—the mere fact that such condition is attached does not negate the character of the wage as ordinary wages. Even if an employee's actual number of working days falls short of the number of contractual working days such that the employee fails to receive the wage subject to the working-day condition, as long as the wage possesses the character of consideration for contractual work, regularity, and uniformity, it must be included in the ordinary wages in calculating the statutory allowances for extended, night, and holiday work (see Supreme Court en banc Decision 2023Da302838 rendered on December 19, 2024).
B. Determination
The court below, for the reasons stated in its judgment, adopted as is the first instance judgment, which determined that the driving allowance (승무수당), paid only to those who drove three or more times per month, is included in ordinary wages.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, at the Defendant's place of business, which sets the working days as two-shift work per day and full attendance of 26 days (25 days where the last day of February is the 29th, and 24 days where it is the 28th), driving three times per month constitutes a number of working days that would be satisfied by an employee who fully performs the contractual work. Accordingly, even though the driving allowance in this case is subject to a working-day condition, it constitutes ordinary wages determined to be paid regularly and uniformly as consideration for contractual work. Although the part of the judgment below that regarded fixedness (고정성) as a conceptual indicium of ordinary wages, in accordance with the precedent before its modification, is inappropriate, the conclusion that the driving allowance is included in ordinary wages is justified, and there is no error in the court below's determination on this point, as alleged in the grounds of appeal, that misapprehended the legal principles regarding the scope of ordinary wages, thereby affecting the judgment.
4. Conclusion
All appeals are dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Shin Suk-hee (Presiding Justice), Justice Noh Tae-ak (Justice in Charge), Justice Seo Kyung-hwan, Justice Noh Kyung-pil