최저임금법상 비교대상임금과 통상임금

11 ex-lecturers retired from the N Driving School(hereinafter “NDS” ) had claimed the payment of the difference between the minimum wages and the paid wages. In the course of the trial, disputed points were ① the scope of the wage comparative to the minimum wage, ② the way to convert the monthly-based wage to the hour-based wage. The local court(single judge) and the appellate court ordered the payment of about 90% of the claimed amout of wage. But the Supreme Court remanded the trial in that the appellate court had a misconception about the difference between the comparative wage and the ordinary wage. The remanded trial was settled, which ordered the payment of about 15% of the claimed amout of wage. The difference between [90%] and [15%] results from the two points. One is the foundings that several items of the wage can be compared the minimun wage because they are not excluded from the list of comparative wages in the regulations of the Minimun Wage Act. And another is that in converting the monthly-based wage to the hour-based wage agreed working times should not be 225.9 hours per month but 191.2 hours per month because 8 hours(constructive hours that give base to the weekly allowance) does not matter in the comparative wage. I think that in NDS Case the Supreme Court's interpretation of the Minimum Wage Act/Regulations is correct in its conclusion. But this case presents the clue to the problematics concerning the dominant concept of the ordinary wage in Labour Standards Act/Regulations and the precedential way way to convert the monthly-based wage to the hour-based wage. So far the weekly allowance is regarded not to be included to the ordinary wage but 8 constructive hours of weekly allowance is regarded to be included to the weekly/monthly agreed working times. This is the logic that the local court(single judge) and the appellate court had adapted, but was remanded by Supreme Court in this NDS Case. I'd like to suggest that although NDS Case was concerned about Minimun Wage Act the logic that weekly allowance should be included in ordinary wage and 8 constructive hours of weekly allowance is falsified the agreed working time. Because the concept of the comparative wage and the ordinary wage has not only the difference(NDS Case has showed) but also the similarity(NDS Case has overlooked but implied). I hope my comment about the weekly rest and allowance in this article will be accepted to be the first presentation to the suggestion <From the working time To the non-working time> in our monthly Seminar at 21 July, 2007.