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김홍영 한국노동법학회 2019 노동법학 Vol.0 No.71
The Supreme Court held that wages of the incumbent condition or the certain number of work-days condition are not included in the normal wages in 2013. But regular bonuses account for a large percentage of the regular salary, and if regular bonuses are excluded from normal wages, the fundamental purpose of the Labor Standards Act, which attempts to limit overtime work to additional wages, may be disrupted. In this article, we will try to resolve the argument about whether regular bonus are included in normal wages if there are incumbent conditions or certain number of work-days conditions. As directions for reviewing the judgment of fixedness, (1) Examining the validity of conditions, (2) Examining normal wages, and (3) Examining the establishment of conditions are presented. As a result of presenting and discussing various issues in each area, we conclude the following conclusions. (1) The incumbent condition and certain number of work-days condition added to regular bonuses are invalid. (2) Even if the regular bonus has such conditions, the regular bonus is recognized as normal wages. (3) If such conditions are not explicitly specified in the regular bonus, the existence of such conditions cannot be recognized. These arguments point out the fact that regular bonuses in Korea are wages in fixed form.
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김홍영 한국노동법학회 2018 노동법학 Vol.0 No.66
In order to decide whether or not to comply with the Minimum Wage Act, the wage to be compared with the minimum wage is called "comparable wage for minimum wage". The current Minimum Wage Act does not include comparable wage as periodic bonus, accommodation fee etc. The problem of expanding inclusion ranges has emerged as an important issue concerning minimum wage. In this article, with regard to the scope of inclusion, we will consider the following matters and develop discussions in the legislative process. First, we evaluate the content recommended by the System Improvement TF of the Minimum Wage Committee, and at the same time present an alternative recommendation. It is recognized that it is necessary to expand the inclusive range of the wage to be compared with the minimum wage. There are limits on both majority opinion and minority opinion of the TF, of "wages paid beyond one month" such as regular bonuses, and complementation is necessary. In order to clarify the scope of inclusion, it is reasonable that most wages are included in the comparable wages. However, in order to be consistent with the purpose of the minimum wage system to stabilize the lives of low-income earners, we must force wages above minimum wages in a short period of earning time. Second, we investigate the relationship between the comparable wage for the minimum wage and the normal wage (that is ordinary and regular wage). It is not appropriate to set the comparable wage similarly to or by the normal wage as it is, without considering the difference between the purpose of the minimum wage system and the purpose of the normal wage system. The range of normal wages presented in terms of interpretation is not appropriate for specifying the range of comparable wage, for which judgment is not easy. Third, we consider changes to shorten the payment cycle of regular bonuses to include in the comparable wage, in light of the purpose of the minimum wage system. Changes that shorten the payment cycle to one month not only do not contravene the purpose of the minimum wage system, but also agree with the purpose of the minimum wage system. In the event that a social consensus is made to change employment rules and collective agreements at business establishments through social dialogue between labor and management, it will be helpful for the stable development of the minimum wage system. Fourth, we consider the discussion of weekly holiday allowance by judging whether or not to violate minimum wage. For the precedents, weekly holiday payments are also included in the comparable wages. The problem of the weekly holiday allowance calculation on comparable wage is solved, as if the weekly holiday shall be unpaid. It is desirable to improve the wage level of low-wage workers by effectively operating the minimum wage system.
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김홍영 한국노동법학회 2022 노동법학 Vol.- No.82
This article was written to review the labor policy of the new government, which was launched in May 2022, in terms of labor law. At this point, we have investigated the labor policy of the new government through the presidential election promises and the government tasks. The parts that I pay attention to are the working hours law system, the wage law system, the labor-management relations law system, the protection of vulnerable labor rights, and so on. The main contents have validity in terms of improvement of the legal system, so it is evaluated as positive for a labor-management-government agreement or a political compromise between the ruling and opposition parties. Detailed supplementary content may be reviewed in the process. In addition, during the period of the new government, efforts must be made to establish a stable labor law and order and build an infrastructure for labor supervision, and social dialogue, such as dialogue between labor, management and government, must be strengthened. We must also prepare to improve the legal system for the collective determination system of working conditions.
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