포괄임금제의 노동법적 검토

Abstract

‘Blanket wage system’(hereinafter referred as ‘BWS’) is one of wage calculation methods in Korea, in which a worker would be paid fixed amount as her/his wage regardless of her/his real working hours. In the decisions concerning with BWS, courts have clarified their stand on several points of the issue. First, BWS is an exceptional method of wage calculation more than a normal method, in which workers would be paid basic wage set by “contractual working hours” and additional allowances set by the Labour Standards Act(hereinafter referred as ‘LSA’), labour contract, rules of employments or collective agreements. Second, in the determination of whether the wage contract is BWS or not, some factors such as a way of work, a form of working hours, natures of work, or remuneration rules for work should be considered. Third, additional allowances such as overtime pay, night-work pay, holiday-work pay, paid-holiday, or Annual Paid Leave could be included, but retirement benefit could not be inclusive. Generally speaking, BWS has been legitimated broadly by courts for a long time. In this essay, I would review these viewpoints of courts and suggest new approaches to interpret BWS correctly as followings. (1) BWS should be interpreted to achieve the harmony of wage laws and working hour laws under the LSA. (2) If the contents of labour contract were not clear, it shall not be approved easily that the contract contains BWS agreement. In this case, the contract should be assumed as a normal form under the LSA in which working hours per week 52 hours or less. (3) BWS agreement could include additional allowances such as overtime pay, night-work pay, holiday-work pay, or paid-holiday, but could not include Annual Paid Leave like retirement benefit. (4) If the agreements or rules related to BWS are to be modified unfavorably to workers, the employer shall obtain workers' consent similar to procedures for Amendment to Rules of Employment under the article 94 of the LSA.