[Plaintiffs, Appellants and Appellees] As indicated in the list of plaintiffs in Attachment 1. (Litigation representative: Minsim Law Firm, Attorney Byun Young-cheol and 2 others)
[Plaintiffs, Appellees] As indicated in the list of plaintiffs in Attachment 2.
[Defendant, Appellee and Appellant] Korea Hydro & Nuclear Power Co., Ltd. (Litigation representative: Yulchon LLC, Attorney Ryu Ji-wan and 5 others)
[Court Below] Busan High Court Judgment 2015Na56314, 56321, 56338, decided December 13, 2017
[Order]
Among the judgment below, the portions concerning the plaintiffs listed in Attachment 1's loss regarding regular overtime allowance up to November 30, 2013, the portion concerning the plaintiffs listed in Attachment 3's loss regarding retirement allowance, and the portion concerning the Defendant's loss, shall be reversed, and this part of the case shall be remanded to the Busan High Court. The remaining appeals by the plaintiffs listed in Attachment 1 are all dismissed.
[Reasoning] The grounds of appeal (to the extent supplemented by the supplementary appellate briefs filed after the deadline for submission of grounds of appeal) are examined.
1. As to the Defendant's grounds of appeal
A. Validity of the waiver of wage claims (First ground of appeal)
Since a worker's wage claim is strongly protected under the Labor Standards Act (근로기준법), any expression of intent regarding a wage claim that may be disadvantageous to the worker must be strictly construed (see Supreme Court Decision 2012Da105505, decided April 11, 2013; Supreme Court Decision 2016Da26099, decided December 29, 2016, among others).
The court below, citing the circumstances stated in its judgment, determined that it was difficult to recognize the validity of the expression of intent to waive wage claims made by Plaintiff 18 and others. Upon examining the reasoning of the judgment below in light of the legal principles set forth above and the record, there is no error in the judgment below, such as misapprehension of legal principles concerning waiver of wage claims, insufficient deliberation, or violation of the rules of evidence, that affected the judgment, as argued in the grounds of appeal.
B. Whether the plaintiffs fell under the category of "workers engaged in monitoring duties" until the end of 2010 (Second ground of appeal)
If a worker falls under the category of "workers engaged in monitoring or intermittent duties" by the nature of their work and has obtained approval from the Minister of Employment and Labor, the provisions of the Labor Standards Act concerning working hours, rest periods, and holidays do not apply pursuant to Article 63, Item 3 of the Labor Standards Act (see Supreme Court Decision 99Da2881, decided May 28, 1999). According to Article 10, Paragraph 2 of the Enforcement Rule of the Labor Standards Act, a person engaged in monitoring duties refers to a person whose primary duty is monitoring work and who is generally engaged in work involving little mental or physical fatigue.
The court below, premising that even if approval from the Minister of Employment and Labor has been obtained, Article 63, Item 3 of the Labor Standards Act does not apply if the work does not, by its nature, fall under monitoring duties, determined that since the plaintiffs could not be deemed to fall under the category of workers engaged in monitoring duties, the Defendant could not be exempted from its obligation to pay overtime allowances, etc., even for the period before March 5, 2012, when the approval was withdrawn.
This ground of appeal contends that, even following the reasoning of the court below, the plaintiffs substantively fell under the category of workers engaged in monitoring duties until the end of 2010. According to the reasoning of the judgment below and the record, it can be seen that the requirement for intensive, constant patrol and guard duties and training for the special guards (청원경찰) working at the Nuclear Power Headquarters, which is a critical national facility and a hazardous facility handling radioactive materials, was the same even before the end of 2010, and that around 2005, the Defendant applied to the labor authorities having jurisdiction over the location of each Nuclear Power Headquarters for approval of monitoring-type work status for these special guards, but received a disapproval disposition on the ground that "the special guards working at the Nuclear Power Headquarters perform duties requiring a high degree of vigilance." In light of this, it cannot be found that the content or intensity of the work changed meaningfully around the end of 2010, as asserted by the Defendant, and thus it is difficult to conclude that the plaintiffs fell under the category of workers engaged in monitoring duties prior to that point.
Therefore, there is no error in the judgment below's determination that the plaintiffs, including the period before the end of 2010, could not be deemed to fall under the category of workers engaged in monitoring duties, such as insufficient deliberation or violation of the rules of evidence regarding whether they fell under such category, as argued in the grounds of appeal.
C. Whether the performance-based payments, etc. constitute ordinary wages (Third ground of appeal)
1) Whether the basic performance pay (internal evaluation pay) and self-performance pay constitute ordinary wages
A) Wages whose payment or amount is determined based on an evaluation of the worker's job performance during the payment period are generally deemed to lack fixedness as wages for that payment period. However, if a minimum amount of payment is guaranteed, such as where a certain amount is paid even to a worker who receives the lowest performance grade, that minimum amount of wages may be considered fixed wages. Where the payment or amount of a specific wage for the current year is determined based on the worker's performance in the previous year, if the payment or amount of that wage is fixed for the current year, that wage should be regarded as constituting a fixed wage for the current year. However, even if a wage whose payment or amount is determined based on an evaluation of the previous year's performance is paid in the current year, if there are special circumstances indicating that it is in substance a wage for the previous year with only the timing of payment set as the current year, fixedness as a wage for the previous year cannot be recognized. Even in such a case, if a certain minimum amount is guaranteed to be paid even to a worker who receives the lowest performance grade, that amount may be regarded as a fixed wage for the previous year to that extent (see Supreme Court en banc Decision 2012Da89399, decided December 18, 2013; Supreme Court Decision 2017Da206670, decided June 11, 2020).
B) The court below determined that the basic performance pay (renamed "internal evaluation pay" as of January 15, 2013; hereinafter referred to as "basic performance pay" regardless of whether before or after the renaming) and the self-performance pay were paid in accordance with the length of service regardless of job performance, and that since the payment or amount could be determined in advance, fixedness was recognized, and thus these payments were included in ordinary wages.
C) However, the judgment below is difficult to accept for the following reasons.
(1) According to the reasoning of the judgment below and the record, the Defendant's compensation regulations and their enforcement rules provide that "the payment period (attendance calculation period) for the basic performance pay and self-performance pay is from December 16 of the year before last to December 15 of the previous year, based on the year in which the performance pay is paid; the payment is made to persons who are in active service as of the payment reference date, provided that persons on suspension from office or leave of absence, or retired persons, are paid a prorated performance pay calculated according to the number of days worked during the payment period; and newly hired workers in the current year are not paid performance pay for the year of hiring."
(2) Examining the above factual relationship in light of the legal principles set forth above, it can be seen that the basic performance pay and self-performance pay received by the plaintiffs were, in substance, wages for the period from December 16 of the year before last to December 15 of the previous year, with only the timing of payment set as the current year. Nevertheless, the court below, premising that the basic performance pay and self-performance pay were wages for the current year, recognized the entire amount as ordinary wages and included them in the ordinary wages for the current year. The judgment below contains an error of misapprehending the legal principles concerning ordinary wages that affected the judgment, and the ground of appeal pointing this out is well-founded. However, if there is a portion that is guaranteed to be paid as a minimum amount regardless of job performance, as wages for the previous year, that minimum amount of wages may be regarded as fixed wages; thus, the court below upon remand needs to examine whether there is a minimum payment portion as wages for the previous year.
2) Whether the meal allowance, transportation allowance, and heating allowance paid until around December 2011 constitute ordinary wages
The court below, for the reasons stated in its judgment, determined that the meal allowance, transportation allowance, and heating allowance paid until around December 2011 constituted ordinary wages. Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the judgment below of misapprehending the legal principles concerning ordinary wages, as argued in the grounds of appeal.
D. Whether holiday work allowance should be recognized (Fourth ground of appeal)
The court below rejected the Defendant's argument that, since the rest days (days off from duty) of special guards working in shifts constitute paid holidays under the Labor Standards Act, there was no need to separately pay holiday work allowance even if they worked on Sundays or public holidays, and determined that the Defendant was obligated to pay the plaintiffs holiday work allowance for work performed on Sundays and public holidays.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, the judgment below is justified, and there is no error therein, such as misapprehension of legal principles concerning holiday work allowance, insufficient deliberation, or violation of the rules of evidence, as argued in the grounds of appeal.
2. As to the grounds of appeal of the plaintiffs listed in Attachment 1 (hereinafter referred to as "the plaintiffs" in this Section 2)
A. Whether a comprehensive wage agreement (포괄임금약정) was formed and valid (First ground of appeal)
1) Whether an agreement on the comprehensive wage system (referring to an arrangement in which the employer and worker, without predetermining a base wage, set an amount inclusive of statutory allowances as the monthly salary or daily wage, or, while predetermining a base wage, set a certain amount as statutory allowances without distinguishing among the various statutory allowances, and pay such amount regardless of the number of working hours) has been formed must be determined specifically by comprehensively considering various circumstances, including working hours, the form and nature of the work, the unit for calculating wages, the contents of collective agreements and the rules of employment, and the actual conditions at similar workplaces (see Supreme Court Decision 2008Da57852, decided December 10, 2009, among others). In this regard, in order to recognize that a comprehensive wage agreement has been formed by implicit agreement even though the collective agreement, rules of employment, and employment contract do not explicitly state the intent to adopt a comprehensive wage system, it must be objectively recognized not only that there is a practical necessity, such as where it is difficult to accurately calculate actual working hours due to the special nature of the work form or where a certain amount of extended, night, or holiday work is anticipated, but also that, in light of all circumstances including the working hours and the form and level of the wages set, there was an agreement between the employer and the worker not to pay any additional allowance, or not to pay a specific allowance, beyond the fixed monthly salary or daily wage (see Supreme Court Decision 2016Do1060, decided October 13, 2016, among others).
Where it is recognized, considering the working hours, the form of work, and the nature of the duties, that the calculation of working hours is difficult, a wage payment contract based on the comprehensive wage system, even if concluded, shall be valid if it is not otherwise disadvantageous to the worker and is recognized as justified in light of various circumstances (see Supreme Court Decision 2002Da16958, decided June 14, 2002; Supreme Court Decision 2008Da6052, decided May 13, 2010, among others). However, if it is not a case where the calculation of working hours is difficult as described above, then, absent special circumstances indicating that the provisions of the Labor Standards Act concerning working hours cannot be applied as they are, the principle of wage payment in accordance with working hours under the Labor Standards Act must be applied; therefore, in such a case, if a wage payment contract based on the comprehensive wage system as described above has been concluded, it must be examined whether it violates the regulations concerning working hours set forth in the Labor Standards Act, and if the statutory allowances included in the comprehensive wage fall short of the statutory allowances calculated in accordance with the standards set forth in the Labor Standards Act, the portion of the wage payment contract based on the comprehensive wage system corresponding to the shortfall is disadvantageous to the worker and thus invalid, and the employer is obligated to pay the worker the shortfall in statutory allowances pursuant to the principles of mandatory application and supplementary application of the Labor Standards Act (see Supreme Court Decision 2008Da6052, decided May 13, 2010; Supreme Court Decision 2015Da8803, decided June 25, 2020, among others).
2) The court below determined that, since the comprehensive wage system was introduced and annual salaries were somewhat increased, and since the comprehensive wage agreement was not disadvantageous to the workers in light of the rules of employment, among other reasons, the comprehensive wage agreement regarding the regular overtime allowance (referring to overtime allowance arising from ordinary shift work, excluding substitute duty, emergency duty, etc.) was validly formed until November 30, 2013.
3) However, the judgment below is difficult to accept for the following reasons.
A) According to the reasoning of the judgment below and the record, the following circumstances can be identified.
(1) The plaintiffs, along with the special guards who worked at the Nuclear Power Headquarters under the Defendant, worked, until November 30, 2013, in a 3-team, 2-shift work pattern, repeating a 10-hour day shift on Day 1 and a 14-hour night shift on Day 2 and Day 3 (working from 6:00 p.m. on Day 2 to 8:00 a.m. on Day 3, with the remainder of Day 3 being a rest day), thereby working an average of 56 hours per week (= 24 hours ÷ 3 days × 7 days).
(2) When the Defendant obtained approval from the head of the Seoul Gangnam District Office of the Seoul Regional Employment and Labor Office on December 31, 2007, for the monitoring-type work status of the special guards under Article 63, Item 3 of the Labor Standards Act, it devised a "Special Guard Wage Structure Reform Plan," under which the overtime allowance for 48 hours per month would be included in the standard wage without applying the 50% premium rate, and the monthly salary would be paid accordingly, while the Sunday holiday work allowance, overtime allowance for substitute duty, and night work allowance would continue to be paid as performance-based pay as before; and it amended the guard operation regulations to provide that the 50% premium rate would not be applied when calculating overtime allowance.
(3) After conducting training for the special guards regarding the wage structure reform plan, the Defendant, from January 2008 until November 30, 2013, when the special guards' work pattern was changed to a 4-team, 3-shift system, paid wages in accordance with the above reform plan without separately paying regular overtime allowance, instead including it in the standard wage.
B) Examining the above factual relationship in light of the legal principles set forth above: The plaintiffs' work pattern falls under a case where a certain amount of overtime work, etc. is anticipated, and thus a practical necessity for concluding a comprehensive wage agreement is recognized; and it can be seen that there was an agreement not to pay any additional overtime allowance beyond the fixed amount of overtime allowance included in the standard wage for regular overtime work, and thus it can be recognized that a comprehensive wage agreement regarding regular overtime allowance was formed. However, for the following reasons, it is appropriate to view that the portion of the overtime allowance included in the comprehensive wage that falls short of the overtime allowance calculated in accordance with the standards set forth in Article 56 of the former Labor Standards Act (before amendment by Act No. 15513, March 20, 2018; hereinafter referred to as the "former Labor Standards Act") is disadvantageous to the workers and thus invalid. Therefore, the Defendant is obligated to pay the plaintiffs the difference between the regular overtime allowance calculated in accordance with the former Labor Standards Act and the amount actually paid, for the period until November 30, 2013.
(1) The comprehensive wage agreement was formed on the premise that the special guards fell under the category of workers engaged in monitoring duties and thus the provisions of the Labor Standards Act concerning overtime work did not apply; however, as noted above, since the plaintiffs do not fall under the category of workers engaged in monitoring duties, overtime allowance must be paid in accordance with the Labor Standards Act. Even though the actual average monthly overtime hours far exceeded 48 hours per month, the overtime allowance included in the standard wage under the comprehensive wage agreement was only for 48 hours per month, and the premium rate was not applied, resulting in a shortfall compared to the overtime allowance calculated pursuant to Article 56 of the former Labor Standards Act; thus, the corresponding portion of the comprehensive wage agreement is invalid.
(2) The court below cited, as grounds for its determination, the circumstance that the total wage amount increased by approximately 3.2% to 6.4% upon the introduction of the comprehensive wage system; however, if the comprehensive wage agreement includes working conditions that fall short of the Labor Standards Act, that portion is invalid, and it should not be deemed valid merely because the overall total wage amount increased. Furthermore, the wage increase rate recognized by the court below appears to have been calculated on the premise that only the overtime allowance for 48 hours per month, which is less than the actual overtime hours, had previously been paid, raising doubt as to whether the pre-existing wages used for comparison were lawfully calculated in accordance with the standards set forth in the Labor Standards Act.
4) Nevertheless, the court below determined that the comprehensive wage agreement was validly formed; this determination by the court below contains an error of misapprehending the legal principles concerning comprehensive wage agreements that affected the judgment. The ground of appeal pointing this out is well-founded.
B. Method of calculating hourly ordinary wages (Second ground of appeal)
1) It is not permissible to determine whether something constitutes ordinary wages in accordance with the Labor Standards Act, while determining the standard number of hours for calculating hourly ordinary wages in accordance with the rules of employment or collective agreement, because this would involve individually comparing various elements included in a single working condition and selectively choosing the most favorable content for the worker as to each element (see Supreme Court Decision 2011Da81022, decided January 24, 2013; Supreme Court Decision 2019Da261084, decided November 28, 2019, among others).
2) The plaintiffs' argument that the scope of ordinary wages should be determined in accordance with the Labor Standards Act, while the standard number of hours for calculating hourly ordinary wages should be based on the 209 hours set forth in the rules of employment, is contrary to the legal principles set forth above and is difficult to accept; therefore, the judgment below's rejection of this argument is justified, and there is no error therein of misapprehending the legal principles, as argued in the grounds of appeal.
C. Whether holiday work allowance and overtime allowance may be cumulatively added (Third ground of appeal)
Since holiday work hours under the former Labor Standards Act must not be regarded as included in the weekly standard working hours or the weekly overtime hours, the premium wages for holiday work and the premium wages for overtime work cannot be cumulatively paid (see Supreme Court en banc Decision 2011Da112391, decided June 21, 2018). The judgment below's determination that, even if holiday work is performed in excess of 40 hours per week, only a 50% premium on ordinary wages is added as holiday work for the portion not exceeding 8 hours per day, and an additional 50% premium as overtime work is not cumulatively added, is consistent with the above legal principles and is justified. There is no error therein of misapprehending the legal principles concerning the payment of premium wages for holiday work and overtime work, as argued in the grounds of appeal.
D. Whether a claim for the difference in weekly holiday allowance may be made (Fourth ground of appeal)
Where a worker's wage is paid on a monthly basis, the monthly ordinary wage includes the wages for paid holidays under Article 55, Paragraph 1 of the Labor Standards Act (see Supreme Court Decision 90Daka12493, decided December 26, 1990, among others). Therefore, unless otherwise provided in the employment contract, collective agreement, etc., a worker paid on a monthly basis cannot claim the difference in weekly holiday allowance on the ground that the ordinary wage has increased.
The court below, in this case where the plaintiffs, who are monthly-paid workers, claimed the difference between the weekly holiday allowance calculated based on the hourly ordinary wage recalculated to include fixed allowances belonging to ordinary wages and the weekly holiday allowance already paid, dismissed the claim for such difference on the ground that the monthly salary received by the plaintiffs already included the entire amount of the legitimate weekly holiday allowance. Upon examining the reasoning of the judgment below in light of the above legal principles and the record, the judgment below is justified, and there is no error therein of misapprehending the legal principles concerning weekly holiday allowance, as argued in the grounds of appeal.
E. Validity of the interim settlement of retirement allowance (Fifth ground of appeal)
The court below determined that the plaintiffs who received an interim settlement of retirement allowance between December 15, 1999 and December 15, 2009, did so pursuant to their own free will, and, finding that Article 8, Paragraph 2 of the Act on the Guarantee of Workers' Retirement Benefits (근로자퇴직급여 보장법), as amended by Act No. 10967 on July 25, 2011 and enforced from July 26, 2012, did not apply to these plaintiffs, rejected their argument that interim settlement of retirement allowance is permitted only in cases involving reasons such as home purchase.
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, the judgment below is justified, and there is no error therein, such as misapprehension of legal principles concerning interim settlement of retirement allowance or violation of the rules of evidence, as argued in the grounds of appeal.
3. Scope of reversal
The portion of the judgment below concerning the loss of the plaintiffs listed in Attachment 1 relating to the claim for regular overtime allowance until November 30, 2013, and the portion concerning the Defendant's loss relating to the claim for statutory allowances calculated by recognizing the basic performance pay and self-performance pay as ordinary wages for the current year, contain the grounds for reversal noted above.
Upon remand, the court below needs to determine whether these payments constitute ordinary wages and recalculate the hourly ordinary wage, taking into account the purport of the above reversal, and then recalculate the amount of statutory allowances to be granted; and if the amount of statutory allowances changes, the scope of the retirement allowance claim, which is based on average wages, may also change accordingly. Therefore, the portion concerning the Defendant's loss, including the portion concerning the retirement allowance claim, must be reversed in its entirety, and, with respect to the plaintiffs listed in Attachment 3, for whom the regular overtime allowance until November 30, 2013 is included in the average wage that forms the basis for calculating retirement allowance, the portion of their loss relating to the retirement allowance claim must also be reversed together.
4. Conclusion
Therefore, without examining the remaining grounds of appeal, the portions of the judgment below concerning the loss of the plaintiffs listed in Attachment 1 relating to regular overtime allowance until November 30, 2013, the loss of the plaintiffs listed in Attachment 3 relating to retirement allowance, and the loss of the Defendant, are reversed, and this part of the case is remanded to the court below for further hearing and determination; and the remaining appeals by the plaintiffs listed in Attachment 1 are all dismissed. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
[Attachment 1] List of Plaintiffs: Omitted
[Attachment 2] List of Plaintiffs: Omitted
[Attachment 3] List of Plaintiffs: Omitted
Justice Oh Seok-jun (Presiding Justice), Justice Noh Jeong-hee, Justice Lee Heung-gu (Justice in charge)