통상임금 판단에 있어서 임금지급기준의 효력

This is the author’s opinion on which basis several wage payment criteria that become a problem when deciding ordinary wages should be determined. Discussions can be summarized as follows. First, the Labor Standards Act has several provisions in order to protect wages, the most important working condition for workers and ordinary wages have such nature. Ordinary wages perform the function of correcting the variability of average wages and the instrumental function for calculating various extra benefits stipulated in the Labor Standards Act. Among them, if analyzing Article 46 (business suspension allowance) of the Labor Standards Act, one of the provisions of correcting the variability of average wages, the level of ordinary wages estimated by the Labor Standards Act and according to it, the level of ordinary wages should be at least 70% of the wage that the worker receives at ordinary times. This implies that when the parties of labor relationship attempt to reduce ordinary wages, the court should try to control the attempt in order to maintain at least the level. Second, wages or ordinary wages are the evaluation concept not recognized by ‘formal criteria such as name of wages or length of payment cycle etc.’ determined by the parties but determined by the judgment of the court based on ‘the objective nature.’ This means that the court is recognized as one subject determining wages or ordinary wages and therefore, it should perform its role of protecting the wages of workers in accordance with the legislative intent of the Labor Standards Act in such scope. In particular, the attempt of the parties of labor relationship trying to change fixed salary to variable salary through setting of wage payment criteria needs to be controlled properly. Third, in order for wage payment criteria determined by the parties to be functioned as the element denying ordinary wages in the determination of ordinary wages, the criteria should be recognized as true variable salary criteria. Specifically, the criteria should be associated with the performance of work and meet the nature of variability by not fixed amount of payment and various payment standards and should not be formal criteria that can satisfy all workers without special circumstances and not try to exclude compulsory application of ordinary wages. By applying these criteria, the author reviewed the effects of criteria for incumbents, criteria for meeting the number of certain working days, performance criteria etc. and judgement cases of the Supreme Court or trials by lower courts for them show that efforts to protect the wages of workers are not good enough.