Open Decision Ledger · Labour & industrial accidents
Shortening scheduled working hours as evasion of the minimum wage
Supreme Court, Feb. 29, 2024, 2023Da292955 (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
Under the flat-rate taxi commission system, where the employer acts with the intent of avoiding the fixed pay falling below the minimum wage and of raising the apparent amount of the hourly fixed pay, is an agreement to shorten only the scheduled working hours, with no change to the actual work pattern or operating time, void as an act in fraud of law evading Article 6(5) of the Minimum Wage Act, and do the hours relating to the weekly holiday allowance count towards the scheduled working hours when wages are converted under Article 5(1)(ii) and (iii) of the former Enforcement Decree?
Holding
Where the employer, with the intent of avoiding the fixed pay falling below the minimum wage and of raising the apparent amount of the hourly fixed pay, agrees with the taxi drivers' union to shorten only the scheduled working hours without any change to the actual work pattern or operating time, the agreement is void as an act in fraud of law evading the mandatory minimum wage regime. Denying the effect of scheduled hours agreed by union and employer is exceptional, so it requires the strict assessment of all relevant circumstances, including whether the regime is substantively evaded. For the period before 31 December 2018, absent special circumstances, the hours relating to the weekly holiday allowance are excluded when wages are converted, when the shortfall is calculated, and when the validity of the agreement is tested. Weekly or monthly wages are divided by the scheduled hours of one week or one month, and those holiday hours do not count towards them.
Points at issue, verbatim
정액사납금제하에서 생산고에 따른 임금을 제외한 고정급이 최저임금에 미달하는 것을 회피할 의도로 사용자가 소정근로시간을 기준으로 산정되는 시간당 고정급의 외형상 액수를 증가시키기 위해 택시운전근로자 노동조합과 사이에 실제 근무형태나 운행시간의 변경 없이 소정근로시간만을 단축하기로 한 합의의 효력(무효)
Unofficial English translation
The effect of an agreement (void) entered into between an employer and a taxi driver labor union, with the intent to evade the situation where the fixed wages excluding wages based on output fall short of the minimum wage under the fixed remittance system, to reduce only the prescribed working hours without any change in the actual work pattern or driving hours in order to increase the ostensible amount of the hourly fixed wages calculated on the basis of the prescribed working hours
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 패소 부분을 모두 파기하고, 이 부분 사건을 대구지방법원에 환송한다.
Unofficial English translation
The portion of the judgment of the court below adverse to the defendant is reversed in its entirety, and this part of the case is remanded to the Daegu District Court.
Form of the test
Circumstances weighed Stated in the decision
관련 사정을 종합하여 엄격하게 판단하여야 하는지 여부(적극)
Unofficial English translation
Whether a strict determination must be made in light of all relevant circumstances (affirmative)
Factors
- 정액사납금제하에서 생산고에 따른 임금을 제외한 고정급이 최저임금에 미달하는 것을 회피할 의도로
- 사용자가 소정근로시간을 기준으로 산정되는 시간당 고정급의 외형상 액수를 증가시키기 위해
- 실제 근무형태나 운행시간의 변경 없이 소정근로시간만을 단축하기로 한 합의의 효력(무효)
- 주휴수당 관련 근로시간이 ‘1주 또는 1개월의 소정근로시간’에 합산되는지 여부(소극)
Unofficial English translation
• with the intent to evade the situation where the fixed wages excluding wages based on output fall short of the minimum wage under the fixed remittance system
• in order for the employer to increase the ostensible amount of the hourly fixed wages calculated on the basis of the prescribed working hours
• the effect of an agreement (void) to reduce only the prescribed working hours without any change in the actual work pattern or driving hours
• Whether the working hours related to the weekly holiday allowance are included in the 'prescribed working hours of one week or one month' (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2019. 4. 18. 선고 2016다2451 전원합의체 판결(공2019상, 1074)
Unofficial English translation
Supreme Court Decision 2016Da2451 decided April 18, 2019, en banc judgment (Gong 2019 Sang, 1074)
Decisions referred to
[1][2][3] 대법원 2024. 1. 4. 선고 2023다237460 판결(공2024상, 359) / [1][3] 대법원 2019. 4. 18. 선고 2016다2451 전원합의체 판결(공2019상, 1074) / [2][3] 대법원 2007. 1. 11. 선고 2006다64245 판결(공2007상, 289), 대법원 2018. 6. 19. 선고 2014다44673 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
When the statutory minimum wage rises sharply after an agreement, how much weight does that later change carry in testing the agreements signed in the following years?
The remand judgment, examining each collective agreement separately, will show how the standard is applied. Any amendment to Article 5(1)(ii) and (iii) of the Enforcement Decree or to Article 6(5) of the Minimum Wage Act, or a later decision superseding Supreme Court Decision 2016Da2451, requires this entry to be read again.
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 2 (holding), axis 8 (open question and revisit condition).
Axis 2 (Holding): Primary “Where the employer, with the intent of avoiding the fixed pay falling below the minimum wage and of raising the apparent amount of the hourly fixed pay, agrees with the taxi drivers' union to shorten only the scheduled working hours without any change to the actual work pattern or operating time, the agreement is void as an act in fraud of law evading the mandatory minimum wage regime. Denying the effect of scheduled hours agreed by union and employer is exceptional, so it requires the strict assessment of all relevant circumstances, including whether the regime is substantively evaded. For the period before 31 December 2018, absent special circumstances, the hours relating to the weekly holiday allowance are excluded when wages are converted, when the shortfall is calculated, and when the validity of the agreement is tested. Weekly or monthly wages are divided by the scheduled hours of one week or one month, and those holiday hours do not count towards them.” vs Independent “Invalidity requires strict assessment of the relevant circumstances, and hours associated with weekly paid holiday allowances must generally be excluded for periods on or before December 31, 2018. The stated circumstances did not establish evasion through the agreements up to 2015, so the agreements from 2017 onward required separate examination.”
Both state the strict-assessment rule and the exclusion of weekly holiday hours before 2018, but the primary reading declares the agreement void, whereas the independent reading withholds that conclusion and leaves the 2017 onward agreements for separate review.
정액사납금제하에서 생산고에 따른 임금을 제외한 고정급이 최저임금에 미달하는 것을 회피할 의도로 사용자가 소정근로시간을 기준으로 산정되는 시간당 고정급의 외형상 액수를 증가시키기 위해 택시운전근로자 노동조합과 사이에 실제 근무형태나 운행시간의 변경 없이 소정근로시간만을 단축하기로 한 합의의 효력(무효)Axis 8 (Open question and revisit condition): Primary “When the statutory minimum wage rises sharply after an agreement, how much weight does that later change carry in testing the agreements signed in the following years?” vs Independent “Do the individual agreements concluded in 2017 and afterward constitute unlawful evasion when assessed using the correct working hours and wage comparisons?”
The primary reading asks how much weight a later sharp rise in the minimum wage should carry, while the independent reading asks whether the 2017 onward agreements are individually evasive.
정액사납금제하에서 생산고에 따른 임금을 제외한 고정급이 최저임금에 미달하는 것을 회피할 의도로 사용자가 소정근로시간을 기준으로 산정되는 시간당 고정급의 외형상 액수를 증가시키기 위해 택시운전근로자 노동조합과 사이에 실제 근무형태나 운행시간의 변경 없이 소정근로시간만을 단축하기로 한 합의의 효력(무효)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 Daegu District Court, in its judgment of 20 September 2023 (2022Na315361), treated the scheduled hours including the weekly holiday hours as the basis for testing compliance with the minimum wage. It held all the scheduled hours agreements from 2013 to 2019 void as acts in fraud of law evading the special provision, and fixed the shortfall on the 6 hours 40 minutes a day set by the 2011 collective agreement.
Supreme Court standard: The Supreme Court held that this reading was not acceptable. Scheduled hours may in principle be agreed freely, and their effect may be denied only where special circumstances exist, such as the hours being a mere formality or an act in fraud of law evading the mandatory provision, judged strictly on all relevant circumstances; for the period before 31 December 2018, absent special circumstances, the holiday hours must be excluded. It noted that the 2013 agreement cut the hours by 40 minutes only, the 2015 agreement left them unchanged, and the monthly total of KRW 949,110 in the 2013 pay schedule, divided by the previous monthly scheduled hours excluding holiday hours, far exceeded the statutory hourly minimum wage for 2013 to 2015. The court below erred in voiding all the agreements from 2013 to 2019 without examining each one against the parties' intention, the degree of reduction, and the objective difference from and trend of the statutory hourly minimum wage.
Distinguishing conditions
- An agreement made without the employer's intent to avoid the fixed pay falling below the minimum wage or to raise the apparent hourly fixed pay, since the voidness rule turns on that intent.
- An agreement that also changes the actual work pattern or operating time, since the rule addresses a reduction of the scheduled hours alone.
- Wages paid in the period after the amendment of 31 December 2018, since the exclusion of holiday hours was stated for the earlier period.
Record verification notes
Test each collective agreement against the year's statutory hourly minimum wage, as the Court did with the KRW 949,110 total in the 2013 pay schedule. Then check whether the actual work pattern or operating time changed at all, and keep the periods before and after 31 December 2018 apart, watching for any special circumstance that would displace the exclusion of holiday hours.
From the official text
Points at issue
[1] 정액사납금제하에서 생산고에 따른 임금을 제외한 고정급이 최저임금에 미달하는 것을 회피할 의도로 사용자가 소정근로시간을 기준으로 산정되는 시간당 고정급의 외형상 액수를 증가시키기 위해 택시운전근로자 노동조합과 사이에 실제 근무형태나 운행시간의 변경 없이 소정근로시간만을 단축하기로 한 합의의 효력(무효) [2] 구 최저임금법 시행령 제5조 제1항 제2호 및 제3호에 따라 주 단위 또는 월 단위로 지급된 임금을 시간에 대한 임금으로 환산하는 경우, 주휴수당 관련 근로시간이 ‘1주 또는 1개월의 소정근로시간’에 합산되는지 여부(소극) [3] 최저임금법 제6조 제5항 등의 적용을 잠탈하기 위한 탈법행위에 해당한다는 사유로 노사 간의 합의에 의해 정해진 소정근로시간의 효력을 부정하기 위해서는 관련 사정을 종합하여 엄격하게 판단하여야 하는지 여부(적극) 및 이때 2018. 12. 31. 이전의 기간 동안 소정근로시간의 단축합의가 최저임금법 제6조 제5항 등의 적용을 잠탈하기 위한 탈법행위로서 무효인지를 판단할 경우에는 주휴수당 관련 근로시간을 제외하여야 하는지 여부(원칙적 적극)
Unofficial English translation
[1] The effect of an agreement (void) entered into between an employer and a taxi driver labor union, with the intent to evade the situation where the fixed wages excluding wages based on output fall short of the minimum wage under the fixed remittance system, to reduce only the prescribed working hours without any change in the actual work pattern or driving hours in order to increase the ostensible amount of the hourly fixed wages calculated on the basis of the prescribed working hours [2] Whether, in converting wages paid on a weekly or monthly basis into wages per hour pursuant to Article 5, paragraph (1), subparagraph 2 and subparagraph 3 of the former Enforcement Decree of the Minimum Wage Act, the working hours related to the weekly holiday allowance are included in the 'prescribed working hours of one week or one month' (negative) [3] Whether, in order to deny the effect of the prescribed working hours determined by an agreement between labor and management on the ground that it constitutes an act of evasion of the law intended to circumvent the application of Article 6, paragraph (5), etc. of the Minimum Wage Act, a strict determination must be made in light of all relevant circumstances (affirmative), and whether, in determining whether the agreement reducing the prescribed working hours for the period prior to December 31, 2018 is void as an act of evasion of the law intended to circumvent the application of Article 6, paragraph (5), etc. of the Minimum Wage Act, the working hours related to the weekly holiday allowance must be excluded (affirmative in principle)
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
원심판결 중 피고 패소 부분을 모두 파기하고, 이 부분 사건을 대구지방법원에 환송한다.
Unofficial English translation
The portion of the judgment of the court below adverse to the defendant is reversed in its entirety, and this part of the case is remanded to the Daegu District Court.
Provisions referred to
[1] 헌법 제32조 제1항, 최저임금법 제6조 제1항, 제3항, 제5항, 여객자동차 운수사업법 제1조 [2] 구 최저임금법 시행령(2018. 12. 31. 대통령령 제29469호로 개정되기 전의 것) 제5조 제1항 제2호, 제3호, 구 근로기준법(2018. 3. 20. 법률 제15513호로 개정되기 전의 것) 제2조 제1항 제7호(현행 제2조 제1항 제8호 참조), 제55조 [3] 최저임금법 제6조 제5항, 구 최저임금법 시행령(2018. 12. 31. 대통령령 제29469호로 개정되기 전의 것) 제5조 제1항 제2호, 제3호, 근로기준법 제2조 제1항 제8호, 제55조
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