Open Decision Ledger · Labour & industrial accidents
Uniformity and fixation in regular wages, and the weekly holiday allowance gap
Supreme Court, Aug. 20, 2020, 2017Da273663 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 임금
Official text on the National Law Information Center
Question
What do the uniformity and fixation elements of regular wages mean, how is pay tied to an assessed performance to be treated, and may hourly or daily workers claim the gap in weekly holiday allowance computed on a newly calculated hourly regular wage including monthly fixed allowances?
Holding
A wage belongs to regular wages only if uniform and fixed. Uniformity covers pay to all workers and to all workers meeting a fixed condition connected to the value of the agreed labour; fixation means pay certain regardless of merit or added conditions. Pay set by evaluating performance generally lacks fixation for that period, unless a minimum is guaranteed even at the lowest grade, and where pay for the previous year merely had its payment moved into the current year, it cannot be recognised as fixed pay for the previous year. Hourly or daily workers may, in principle and unless the employment contract or collective agreement provides otherwise, claim the gap in weekly holiday allowance computed on an hourly regular wage that adds monthly fixed allowances divided by total hours, being the month's agreed working hours plus the hours treated as paid under Article 55 of the former Labour Standards Act.
Points at issue, verbatim
시급제 또는 일급제 근로자가 근로기준법상 통상임금에 속하는 매월 지급되는 고정수당을 포함하여 새로이 산정한 시간급 통상임금을 기준으로 계산한 주휴수당액과 이미 지급받은 주휴수당액의 차액을 청구할 수 있는지 여부(원칙적 적극)
Unofficial English translation
Whether an employee on an hourly wage system or a daily wage system may claim the difference between the amount of the weekly holiday allowance calculated on the basis of the hourly ordinary wage newly recalculated to include fixed monthly allowances falling within the ordinary wage under the Labor Standards Act and the amount of the weekly holiday allowance already paid (affirmative in principle)
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 원고 5를 제외한 나머지 원고들에 대한 부분 중 원심판결 별지3 원고별 미지급 수당액란 기재 각 금원 및 각 이에 대하여 2014. 6. 1.부터 2016. 5. 26.까지는 연 5%의, 그 다음 날부터 다 갚는 날까지는 연 15%의 각 비율에 의한 금원 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
As to the remaining plaintiffs other than Plaintiff 5, the part of the judgment of the court below concerning each amount stated in the column for unpaid allowances by plaintiff in Attached Table 3 of the judgment of the court below and the money calculated at the rate of 5% per annum from June 1, 2014 to May 26, 2016 and at the rate of 15% per annum from the day thereafter until the day of full payment, respectively, on each such amount, is reversed, and this part of the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
‘고정성’이라 함은 ‘근로자가 제공한 근로에 대하여 그 업적, 성과 기타의 추가적인 조건과 관계없이 당연히 지급될 것이 확정되어 있는 성질’을 말하고
Unofficial English translation
"Fixity" means "the nature whereby payment in return for the labor provided by the employee is determined to be made inevitably, irrespective of his/her achievements, performance, or other additional conditions", and
Factors
- 통상임금의 개념적 징표로서 ‘일률성’ 및 ‘고정성’의 의미
- 근로자의 근무실적을 평가하여 이를 토대로 지급 여부나 지급액이 정해지는 임금이 고정적 임금으로서 통상임금에 해당하는지 판단하는 기준
- 시급제 또는 일급제 근로자가 근로기준법상 통상임금에 속하는 매월 지급되는 고정수당을 포함하여 새로이 산정한 시간급 통상임금을 기준으로 계산한 주휴수당액과 이미 지급받은 주휴수당액의 차액을 청구할 수 있는지 여부(원칙적 적극)
Unofficial English translation
• The meanings of "uniformity" and "fixity" as conceptual indicia of the ordinary wage
• The criteria for determining whether wages whose payment eligibility or amount is determined on the basis of evaluating an employee's work performance fall within the ordinary wage as fixed wages
• Whether an employee on an hourly wage system or a daily wage system may claim the difference between the amount of the weekly holiday allowance calculated on the basis of the hourly ordinary wage newly recalculated to include fixed monthly allowances falling within the ordinary wage under the Labor Standards Act and the amount of the weekly holiday allowance already paid (affirmative in principle)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2013. 12. 18. 선고 2012다89399 전원합의체 판결 등 참조
Unofficial English translation
See Supreme Court en banc judgment 2012Da89399 decided December 18, 2013, etc.
Decisions referred to
[1][2] 대법원 2013. 12. 18. 선고 2012다89399 전원합의체 판결(공2014상, 236) / [2] 대법원 2020. 6. 11. 선고 2017다206670 판결(공2020하, 1325) / [3] 대법원 1998. 4. 24. 선고 97다28421 판결(공1998상, 1438), 대법원 2010. 1. 28. 선고 2009다74144 판결, 대법원 2014. 8. 20. 선고 2014다6275 판결, 대법원 2018. 12. 27. 선고 2016다204271 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances show that pay fixed on the previous year's performance was only moved in its payment timing to the current year, so that it is not fixed pay for the current year?
A later decision treating a performance bonus paid once a year as fixed pay for the year of payment, or a remand judgment finding no link between the work performed and the payment condition for a special labour allowance, would require this entry to be read again. Any amendment to Article 55 of the Labour Standards Act on the weekly holiday allowance would also change the reading.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
Both records show burden as not addressed (언급 없음), so the flagged difference does not appear in the burden fields; the readings differ instead in the standard field (요건 제시 vs 사안 적용), which the enumDiffs list does not include.
근로자의 근무실적을 평가하여 이를 토대로 지급 여부나 지급액이 정해지는 임금이 고정적 임금으로서 통상임금에 해당하는지 판단하는 기준Axis 8 (Open question and revisit condition): Primary “What special circumstances show that pay fixed on the previous year's performance was only moved in its payment timing to the current year, so that it is not fixed pay for the current year?” vs Independent “Will further examination establish that the disputed transport workers' special work allowances and the employer's performance pay satisfy the applicable ordinary-wage requirements?”
The primary reading asks what special circumstances would show that previous-year pay was only moved in timing to the current year, while the independent reading asks whether the disputed transport workers' allowances and performance pay meet the ordinary-wage requirements after further hearing.
시급제 또는 일급제 근로자가 근로기준법상 통상임금에 속하는 매월 지급되는 고정수당을 포함하여 새로이 산정한 시간급 통상임금을 기준으로 계산한 주휴수당액과 이미 지급받은 주휴수당액의 차액을 청구할 수 있는지 여부(원칙적 적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 13 September 2017 (2016Na1002), held that the self performance bonus was regular wages because it was paid once a year and its payment and amount were fixed by the previous year's performance. It held that the first type of special labour allowance paid to directly functional workers, except the part linked to 80 per cent of base pay, and the second type were not uniform or fixed, and that the allowances paid to transporting-function workers likewise lacked uniformity and fixation. It held that the lunch assistance pay, productivity encouragement pay and special area duty allowance already included the weekly holiday allowance and dismissed the remaining plaintiffs' claim for the gap, and computed the hourly regular wage for the incentive and seniority allowances by dividing them by 168.
Supreme Court standard: The Supreme Court found no error on the lunch assistance pay, the basic bonus, or the 80 and 20 per cent parts of base pay. It held that transporting-function workers do different work by job category, so uniformity and fixation must be judged category by category; where all workers in a category performed the work that is the payment condition on every day they attended, the court below had to examine the link between the work done and that condition, and its failure to do so was error. It held that performance-evaluated pay generally lacks fixation, that the self performance bonus may be previous-year pay whose timing alone was moved, and that weekly holiday allowance cannot be treated as already included in monthly fixed allowances paid to daily workers. It also reversed the division of the incentive and seniority allowances by 168, since the Staff Wage Rules only provide how those monthly fixed allowances are reduced on absence.
Distinguishing conditions
- A case in which the employment contract or collective agreement provides otherwise as to whether the weekly holiday allowance is included in the monthly fixed allowance.
- Performance-based pay where a minimum amount is guaranteed even at the lowest grade, since that minimum counts as fixed pay.
- An allowance paid by job category where all workers in that category did not perform the payment-condition work on every day they attended.
Record verification notes
Separate each allowance by name and by the condition attached to it, and test uniformity and fixation against the work actually done on each day attended. For the self performance bonus, check the wage rules on the basis of calculation, the evaluation and the timing of payment. For the daily workers, recompute the hourly regular wage using total hours that include the hours treated as paid under Article 55 of the former Labour Standards Act.
From the official text
Points at issue
[1] 통상임금의 개념적 징표로서 ‘일률성’ 및 ‘고정성’의 의미 [2] 근로자의 근무실적을 평가하여 이를 토대로 지급 여부나 지급액이 정해지는 임금이 고정적 임금으로서 통상임금에 해당하는지 판단하는 기준 [3] 시급제 또는 일급제 근로자가 근로기준법상 통상임금에 속하는 매월 지급되는 고정수당을 포함하여 새로이 산정한 시간급 통상임금을 기준으로 계산한 주휴수당액과 이미 지급받은 주휴수당액의 차액을 청구할 수 있는지 여부(원칙적 적극) 및 이때 매월 지급되는 고정수당액을 월의 소정근로시간과 구 근로기준법 제55조에 따라 유급으로 처리되는 시간을 합한 총근로시간 수로 나눈 금액을 기본 시급 또는 기본 일급의 시간급 금액에 더하는 방식으로 시간급 통상임금을 산정할 수 있는지 여부(적극)
Unofficial English translation
[1] The meanings of "uniformity" and "fixity" as conceptual indicia of the ordinary wage [2] The criteria for determining whether wages whose payment eligibility or amount is determined on the basis of evaluating an employee's work performance fall within the ordinary wage as fixed wages [3] Whether an employee on an hourly wage system or a daily wage system may claim the difference between the amount of the weekly holiday allowance calculated on the basis of the hourly ordinary wage newly recalculated to include fixed monthly allowances falling within the ordinary wage under the Labor Standards Act and the amount of the weekly holiday allowance already paid (affirmative in principle), and whether the hourly ordinary wage may be calculated, at such time, by adding to the hourly amount of the basic hourly wage or the basic daily wage the amount obtained by dividing the amount of the fixed monthly allowance by the total number of working hours, which is the sum of the prescribed monthly working hours and the hours treated as paid under former Article 55 of the Labor Standards Act (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
1. 원심판결 중 원고 5에 대한 부분을 파기하고, 이 부분 제1심판결을 취소한다. 이 부분 소를 각하한다. 2. 원심판결의 원고 5를 제외한 나머지 원고들에 대한 부분 중 원심판결 별지3 원고별 미지급 수당액란 기재 각 금원 및 각 이에 대하여 2014. 6. 1.부터 2016. 5. 26.까지는 연 5%의, 그 다음 날부터 다 갚는 날까지는 연 15%의 각 비율에 의한 금원 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 3. 원고 5, 원고 8, 원고 14, 원고 36을 제외한 나머지 원고들의 나머지 상고를 모두 기각한다. 4. 원고 5와 피고 사이에 생긴 소송총비용은 원고 5의 소송대리인 한용호가 부담한다.
Unofficial English translation
1. The judgment of the court below as to Plaintiff 5 is reversed, and the judgment of the court of first instance in this part is vacated. The claim in this part is dismissed on procedural grounds. 2. As to the remaining plaintiffs other than Plaintiff 5, the part of the judgment of the court below concerning each amount stated in the column for unpaid allowances by plaintiff in Attached Table 3 of the judgment of the court below and the money calculated at the rate of 5% per annum from June 1, 2014 to May 26, 2016 and at the rate of 15% per annum from the day thereafter until the day of full payment, respectively, on each such amount, is reversed, and this part of the case is remanded to the Seoul High Court. 3. All remaining final appeals of the plaintiffs other than Plaintiff 5, Plaintiff 8, Plaintiff 14, and Plaintiff 36 are dismissed. 4. The total costs of litigation incurred between Plaintiff 5 and the defendant shall be borne by Han Yong-ho, the litigation representative of Plaintiff 5.
Provisions referred to
[1] 근로기준법 제2조 제1항 제5호, 근로기준법 시행령 제6조 제1항 [2] 근로기준법 제2조 제1항 제5호, 근로기준법 시행령 제6조 제1항 [3] 구 근로기준법(2018. 3. 20. 법률 제15513호로 개정되기 전의 것) 제55조, 근로기준법 시행령 제6조
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