[Plaintiff (Selected Party), Appellee] Plaintiff (Selected Party) (Attorneys Park Pan-geun and 5 others, Counsel for the Plaintiff)
[Defendant, Appellant] ○○○ Construction Co., Ltd. (Law Firm Dongseung, Attorney Lee Seung-ho and 4 others, Counsel for the Defendant)
[Judgment Below] Daegu District Court Decision 2019Na1907 decided October 30, 2019
[Order]
The judgment below is reversed, and the case is remanded to the Daegu District Court.
[Reasoning]
The grounds of appeal are examined.
1. Course of the Case
According to the reasoning of the first instance judgment cited by the court below and the record, the following facts may be known.
A. The Plaintiff (Selected Party) and the selectors (hereinafter referred to as “the Plaintiffs”) entered into employment contracts with the Defendant and performed formwork carpentry work, among other tasks, at construction sites built by the Defendant.
B. The employment contracts prepared by the Plaintiffs and the Defendant stated that “the monthly wage shall be calculated and paid by multiplying the comprehensive daily wage, in which statutory allowances are already included, by the number of days worked,” and the said comprehensive daily wage specified the proportion occupied by each statutory allowance, including annual leave allowance, for each statutory allowance.
C. The Plaintiffs filed the instant lawsuit against the Defendant seeking payment of annual leave allowance and retirement allowance.
2. Determination on the First Ground of Appeal (Whether the Annual Leave Allowance Should Be Recognized)
The court below determined, for the reasons stated in its judgment, that the Plaintiffs satisfied the requirements necessary for the accrual of annual paid leave, such as attendance rate or perfect attendance.
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, this determination by the court below is correct, and there is no error therein, such as violation of the principle of party presentation or insufficient examination, as alleged in the grounds of appeal.
3. Determination on the Second through Fourth Grounds of Appeal (Whether the Comprehensive Wage Agreement Is Valid)
A. Determination by the Court Below
The court below, based on the contents of the employment contracts and other factors, found that a comprehensive wage agreement had been formed between the Plaintiffs and the Defendant. However, on the ground that the said comprehensive wage agreement was disadvantageous compared to the working conditions prescribed by the Labor Standards Act (근로기준법) and that recognizing the validity of a comprehensive wage agreement that includes even the annual leave allowance would result in depriving workers of their right to annual leave, the court below held that the comprehensive wage agreement was void only with respect to the portion including the annual leave allowance, and accordingly granted in full the Plaintiffs’ claim for payment of the annual leave allowance.
B. Determination by the Supreme Court
However, this determination by the court below is difficult to accept as it stands.
1) In cases where, in light of working hours, the form of work, and the nature of the duties, it is recognized that the calculation of working hours is difficult, even if the employer and the employee enter into a wage payment contract under the so-called comprehensive wage system—whereby, without calculating the basic wage in advance, an amount including even statutory allowances is set as the monthly salary or daily wage and paid regardless of the number of hours worked—such an agreement is valid if it is otherwise not disadvantageous to the employee and is recognized as justified in light of various circumstances (see, e.g., Supreme Court Decision 2003Da66523 decided August 19, 2005). However, where the calculation of working hours is not difficult as described above, absent special circumstances, the principle of calculating allowances under the Labor Standards Act must be applied; therefore, if the fixed statutory allowance included in the comprehensive wage falls short of the statutory allowance calculated according to the standards prescribed by the Labor Standards Act, the portion of the wage payment contract under the comprehensive wage system corresponding to such shortfall is disadvantageous to the employee and thus void, and the employer is obligated, pursuant to the principles of mandatory application and supplementary application of the Labor Standards Act, to pay the employee the shortfall in the statutory allowance (see, e.g., Supreme Court Decision 2008Da6052 decided May 13, 2010).
Meanwhile, even though the annual leave allowance arises only upon working for the period prescribed by the Labor Standards Act, it is not impossible for the parties to agree in advance, on the premise of working for such prescribed period, to include the annual leave allowance in the daily wage or a fixed monthly amount and pay it accordingly; and since the comprehensive wage system concerns the method of paying various allowances and is unrelated to whether or not the employee exercises the right to annual leave, it cannot be said that the comprehensive wage system deprives the employee of the right to annual leave (see, e.g., Supreme Court Decision 96Da24699 decided March 24, 1998).
2) In this case, where it cannot be said that it is difficult to calculate the Plaintiffs’ working hours, if the court below found that a comprehensive wage agreement had been formed between the Plaintiffs and the Defendant to include even the annual leave allowance in the monthly salary, the court below should not have held that the entire portion of the comprehensive wage agreement including the annual leave allowance was void; rather, it should have determined that the comprehensive wage agreement was disadvantageous to the employees and thus void only with respect to the portion by which the amount of annual leave allowance paid as included in the monthly salary fell short of the legitimate amount of annual leave allowance calculated according to the standards prescribed by the Labor Standards Act.
3) Nevertheless, the court below, citing only the reasons stated in its judgment, held that the entire portion of the comprehensive wage agreement including the annual leave allowance was void, and on that premise determined that the Defendant was obligated to pay the Plaintiffs the full amount of the annual leave allowance. Such determination by the court below contains an error that affected the judgment by misunderstanding the legal principles concerning the validity of comprehensive wage agreements and failing to conduct the necessary examination. The ground of appeal pointing this out is well-founded.
4. Scope of Reversal
The portion of the judgment below recognizing the Defendant’s obligation to pay the annual leave allowance contains the grounds for reversal set forth above. Since it is necessary, in the court below after remand, to newly calculate the scope of the granted claims for each of the Plaintiffs, including the retirement allowance, in consideration of the purport of the reversal set forth above, the judgment below must ultimately be reversed in its entirety.
5. Conclusion
The judgment below is reversed, and the case is remanded to the court below for further hearing and determination, in accordance with the unanimous opinion of the Justices involved, as set forth in the Order.
[Attachment] List of Selectors: Omitted
Justice Roh Jeong-hee (Presiding Justice), Justice Ahn Cheol-sang, Justice Lee Heung-gu, Justice Oh Seok-jun (Justice in Charge)