정기상여금의 통상임금 해당성에 대한 연구 ― 대법원 2012. 3. 29. 선고 2010다91046 판결과 관련하여 ―

In this year's wage negotiations(bargaining), an ordinary wage has emerged as the hot potato. Recently the Supreme Court ruled that "Regular bonuses can be included in the ordinary wages". After it remanded the case to the High Court, the legal battle over the ordinary wages entered a new phase. Ordinary wages are the basis of the calculation of additional wages, advance-noticed dismissal allowances and an annual paid leave allowances. If regular bonuses are to be included the ordinary wage in the wage negotiations, the wage would be increased very much. After all, it will cause wage rises, heavy financial risks of employers. Moreover, under our nation's wage system that the employer gives employees many various benefits in addition to the basic salary, the ripple effect will be even greater. Employers wouldn't give employees the various allowances that they have given for years, or decrease the benefits. Then, the workers would prefer to work overtime to increase their salary. As a result, the work environment would get worse. So we can't be just happy about that the court has expanded the scope of the ordinary wages. The judgment is checking 'the regularity', 'the equality', and 'the fixedness' which the court considers the judging indicator of the case and it's also emphasizing the ordinary wage concept in an Enforcement Decree of the Labor Standards Act. But that they have been specified in collective agreements as the basis of payment is not the judging indicator of the ordinary wage, but of the wage. That the court rules that the same amount of money should be paid when it says about the equality makes the meaning of equality limited excessively. Also, about the fixedness, the Supreme Court decides that it's okay if the standard of payment calculation is established in collective agreements in advance. However, as the collective agreements are changeable because they can be renewed, it is regarded that the court expands the range of requisites for the fixedness. The Supreme Court remanded the case to the High Court because of the insufficiency, and left the decision to the High Court. In this respect, this judgment has limitations because it doesn't decide whether the regular bonus belongs to ordinary wages or not.