[Plaintiff, Appellee] Plaintiff 1 and 2 others (Attorney Park Hyeong-mu, Counsel for the plaintiffs)
[Defendant, Appellant] ○○ Taxi Co., Ltd. (Sagong Yeong-jin and 1 other attorney of Samil Law Firm, Counsel for the defendant)
[Judgment Below] Daegu District Court Decision 2022Na315361 decided September 20, 2023
[Order]
The part of the judgment below against which the Defendant lost is all reversed, and this part of the case is remanded to the Daegu District Court.
[Reasoning]
The grounds of appeal are examined.
1. Relevant Legal Principles
A. Considering comprehensively the content and structure of Article 32(1) of the Constitution (헌법) and the relevant provisions of the Minimum Wage Act (최저임금법), the legislative purpose and legislative history of Article 6(5) of the Minimum Wage Act as amended by Act No. 8964 on March 21, 2008 (hereinafter referred to as the “Special Provision”), the purport of the provisions of the Passenger Transport Service Act (여객자동차 운수사업법), the public nature of the general taxi transportation business, and the circumstances surrounding the agreement to reduce prescribed working hours, in cases where, under a fixed-amount deposit system (정액사납금제), the 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, agreed with the labor union of taxi driver employees to reduce only the prescribed working hours—without any change in the actual form of work or operating hours—in order to increase the nominal amount of the hourly fixed wage calculated on the basis of the prescribed working hours, such an agreement must be regarded as an unlawful act aimed at evading the application of the Special Provision and other provisions of the Minimum Wage Act, which are mandatory provisions, and is therefore void (see Supreme Court en banc Decision 2016Da2451 decided April 18, 2019).
B. Article 5(1)2 and 3 of the former Enforcement Decree of the Minimum Wage Act (최저임금법 시행령) (before amendment by Presidential Decree No. 29469 on December 31, 2018) provides that, with respect to wages paid on a weekly or monthly basis among the comparison-target wages, the amount obtained by dividing such wages by the “number of prescribed working hours per week or per month” shall be treated as the hourly wage. Here, “prescribed working hours” means the working hours agreed upon between the employee and the employer within the scope of working hours under Article 50 or Article 69 of the former Labor Standards Act (근로기준법) (before amendment by Act No. 15513 on March 20, 2018, hereinafter the same) or Article 46 of the Occupational Safety and Health Act (산업안전보건법) (Article 2(1)7 of the former Labor Standards Act), and since this is distinct from the standard hours used for calculating ordinary wages, there is no need to take into account the working hours relating to the weekly paid holiday allowance (주휴수당), which is the wage for paid holidays granted under the weekly-wage or monthly-wage system (see Supreme Court Decision 2006Da64245 decided January 11, 2007; Supreme Court Decision 2014Da44673 decided June 19, 2018, etc.).
2. Judgment of the Court Below
A. In examining the circumstances surrounding the conclusion of the collective agreement in order to determine the validity of the agreement to reduce prescribed working hours, it is reasonable to determine whether the minimum wage was complied with at the time on the basis of the prescribed working hours including the working hours relating to the weekly paid holiday allowance (hereinafter “weekly holiday hours”).
B. The agreements to reduce the prescribed working hours at issue in this case, made from 2013 to 2019, are all null and void as unlawful acts aimed at evading the application of the mandatory Special Provision and other provisions, since the result of converting the comparison-target wage into an hourly wage on the basis of the prescribed working hours (including weekly holiday hours) immediately preceding each such agreement fell short of the minimum wage set for the relevant year in each case. Accordingly, the prescribed working hours applicable to the Plaintiffs are 6 hours and 40 minutes per day, as set forth in the 2011 collective agreement.
3. Judgment of the Supreme Court
A. Upon examining the reasoning of the judgment below in light of the relevant legal principles and the evidence duly admitted, the judgment below cannot be upheld, for the following reasons.
1) The Labor Standards Act provides that “prescribed working hours” means the working hours agreed upon between the employee and the employer within the scope of the standard working hours (Article 2(1)8), and, in principle, such hours may be freely determined by agreement between labor and management. However, the validity of such an agreement may be denied only where special circumstances exist, such as where the determination of the prescribed working hours can be assessed as being merely a matter of form, or where it constitutes an unlawful act aimed at evading the application of the Special Provision or other provisions of the Minimum Wage Act, which are mandatory provisions (see the above Supreme Court en banc Decision 2016Da2451). In light of the exceptional nature of such grounds, in order to deny the validity of the prescribed working hours agreed upon between labor and management on such grounds, a strict determination must be made by comprehensively considering all relevant circumstances, including whether the minimum wage system has been substantially evaded. In this regard, unless there are special circumstances, the weekly holiday hours must be excluded not only when determining whether wages paid for the period before December 31, 2018 fall short of the minimum wage, or when calculating the amount by which wages fell short of the minimum wage during that period, but also when determining whether an agreement to reduce prescribed working hours during that period constitutes an unlawful act aimed at evading the application of the Special Provision and other provisions of the Minimum Wage Act, and is therefore void (see Supreme Court Decision 2014Da44673 decided June 19, 2018; Supreme Court Decision 2023Da237460 decided January 4, 2024, etc.).
2) The 2007 collective agreement set the prescribed working hours at 6 hours and 40 minutes. The 2009 and 2011 collective agreements, concluded after the Special Provision came into effect, maintained the prescribed working hours as they were. The 2013 collective agreement set the prescribed working hours at 6 hours, thereby reducing them by only 40 minutes compared to before, and the 2015 collective agreement likewise kept the prescribed working hours unchanged at 6 hours. In the end, over the ten years before the 2017 collective agreement was concluded, the prescribed working hours were reduced by only a total of 40 minutes.
3) In light of the fact that the amount obtained by dividing the sum of the comparison-target wages of 949,110 won, as stated in the “Driver Wage Standard Table” attached to the 2013 collective agreement, by the monthly prescribed working hours (excluding weekly holiday hours) under the immediately preceding collective agreement, was significantly higher than the statutory hourly minimum wage for 2013 through 2015, this shows that the wages set under the 2013 collective agreement were objectively at such a high level that there was no need to reduce the prescribed working hours in order to avoid a violation of the Minimum Wage Act.
4) Considering comprehensively the extent of the reduction in prescribed working hours as described above, the objective difference from the statutory hourly minimum wage, and the trends of change therein, it is difficult to conclude, based solely on the circumstances set forth by the court below, that the 40-minute reduction in prescribed working hours under the 2013 collective agreement constitutes an unlawful act aimed at evading the application of the mandatory Special Provision. Accordingly, the court below should not have summarily concluded that all of the agreements to reduce prescribed working hours made from 2013 to 2019 constituted unlawful acts. Rather, on the premise that the agreements up to and including the 2015 collective agreement were not unlawful acts, the court below should have determined, with respect to the agreements to reduce prescribed working hours under the collective agreements concluded in and after 2017, whether each such agreement constitutes an unlawful act, by considering, for each collective agreement, not only the intent of the parties but also the extent of the reduction in prescribed working hours, the objective difference from the statutory hourly minimum wage, and the trends of change therein.
B. Nevertheless, the court below, for the reasons stated in its judgment, treated the prescribed working hours set forth in the collective agreements from 2013 to 2019 as entirely void, and calculated the amount by which the Defendant's payments to the Plaintiffs fell short of the minimum wage on the basis of the prescribed working hours set forth in the 2011 collective agreement. Such judgment of the court below is erroneous in that it failed to conduct the necessary examination, thereby rendering a judgment contrary to the Supreme Court's precedents concerning the criteria for determining the validity of agreements to reduce prescribed working hours.
4. Conclusion
Accordingly, without examining the remaining grounds of appeal, the part of the judgment below against which the Defendant lost is all reversed, and this part of the case is remanded to the court below for further hearing and determination. This judgment is rendered as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Kwon Young-jun (Presiding Justice), Justice Lee Dong-won, Justice Kim Sang-hwan (Justice in charge)