통상임금의 시간급 산정에 관한 문제

In recent years, ordinary wage has been at the center of several heated discussions. There have been vigorous debates surrounding the standard for determining what counts as ordinary wage and the application of the standard, and the corresponding doctrine of precedent has been formed as well. Yet, there has not been much in-depth discussion in regards to the problem that ensues after a particular wage item is determined to qualify as ordinary wage such as the method of converting the ordinary wage into an hourly rate and the standard therefor. In a case where the employee agreed to provide labor for work hours in excess of standard work hours, and received a set amount of wage as a remuneration for the said labor, and where the said wage constitutes ordinary wage, the method of calculating an hourly rate of ordinary wage may become a topic of discussion. Previous decisions determined that the calculation of the hourly rate of ordinary wage must be in the following formula: [fixed allowances per month ÷ total work hours (i.e., the number of base hours for calculation of monthly ordinary wage + monthly average hours assumed to be spent working on paid holidays + monthly average of overtime hours and night working hours that ‘factored in each of the premium rate’)]. However, the Majority Opinion in the subject case reasoned that factoring in a premium rate is unreasonable in a case like the instant case, and rendered a judgment changing the previous decisions on the following grounds: ① in terms of the method of calculating a reasonable hourly rate, the view that each hour of work performed shall be remunerated with the same amount conforms with the general principle of wage calculation and is most fair and rational; ② the provision in the Labor Standards Act concerning a premium rate applies to the payment of overtime allowances, etc. and, thus, may not serve as the grounds for multiplying a premium rate by the number of hours worked; ③ in the absence of the intention of parties concerned about an hourly rate, it is imperative to find the most rational and objective method of calculating an hourly rate. The Dissenting Opinion that there was no need for changing the previous decisions argued that the parties concerned ought to be deemed to have mutually assented, even in an implied sense, to the items of fixed allowances and the method of calculation thereof. The Dissenting Opinion further argued that even if this was not the case, the parties’ intentions may be supplemented by making objective and rational inferences. Meanwhile, labor and management agreed on a premium rate of 150% for the paid holiday allowances in the subject case. The Majority Opinion and the Dissenting Opinion argued to the same effect on the method of calculating the hours assumed to be worked on paid holidays. With the subject case as a starting point, I look forward to development of various points of argument with respect to the method of converting an ordinary wage into an hourly rate.