The calculation for an Ordinary Wage is utilized to calculate statutory entitlements, thus, has an impact on the aggregate amount of contributions necessary to be paid to an employee. The issue is one of the most significant issues, this year, for domestic and foreign employers.
For example, under Article 56 of the Korean Labor Standards Act, an employer must pay 50% of the “ordinary wage” plus the ordinary wage for overtime, night and weekend work performed by the employee. For many companies, this calculation could increase costs to a point that will make profitable companies head, immediately, to the red.
The basic test has been that an Ordinary Wage is a payment that is: “regular, uniform and flat” Obviously, this “test” leaves much unanswered. The vagueness of this test has led to considerable litigation over the past few years. Additionally, the Korean courts have inconsistently interpreted the definition, thus, leading to much confusion. The confusion coupled with the significant burden on companies that may be imposed, led to a major lobbying drive by foreign and domestic companies.
I have written many memos on this issue with few opportunities to give a definitive answer, because of the lack of a consistent interpretation of the definition by the lower courts and, seemingly, even the Supreme Court. The situation has improved with the following two decisions, however, we expect disputes to continue with regard to the issue of “good faith.” This issue is addressed in a post that may be found at: (Ordinary Wages and the Principle of Good Faith in Korea: Definition and For How Long?).
On December 18, 2013 the Supreme Court of Korea, in a case that I will call the Regular Interval Bonus Case, has delivered a couple of more clear examples, than in the past, of cases were compensation will be considered “Ordinary Wages” under Korean labor and employment law. The cases, in this regard, is a great development in making Korean Labor & Employment law more consistent. In the Regular Interval Bonus Case, the employer in the case was providing a “regular bonus” every two months to employees. Seemingly, the major reason was to not increase “ordinary wages.”
REGULAR INTERVAL BONUS CASE HOLDING
The Court in the Regular Interval Bonus Case opined, in part, that:
- Any collective bargaining agreement (labor-management agreement or like agreement) that deems a certain type of payment as not an Ordinary Wage is void and, thus, unenforceable. An exception is available for certain specific companies that have implemented this practice in particular limited situations based on the vague principle of “good faith and trust.” Discussed at: (Ordinary Wages and the Principle of Good Faith in Korea: Definition and For How Long?); and
- Payments paid at regular intervals are Ordinary Wage. The specific examples below are key in understanding the decision. The “test” is the same and, thus, is still vague. Thus, the Supreme Court did a great job in details situations that would “pass” and “fail” the test (found below).
The Supreme Court remanded the case to the High Court to determine if the “good faith” exception is applicable. As noted this is discussed in another post on this blog.
ALLOWANCE CASE HOLDING
The second case, that I will call the Allowances Case, utilized the Ordinary Wage definition and rationale in the Regular Interval Bonus Case to opine that these allowances when paid just for being employed at a certain period of time will not be considered “flat” under the Ordinary Wage “regular, uniform, and flat” definition.
The Allowances Case was remanded, also, to the High Court to determine if the payments were, only, payments made for being employed during a certain period of time.
The cases are important, since they did a very good job in detailing situations that will and will not be considered Ordinary Wage payments.
EXAMPLES OF PAYMENTS TO INCLUDE IN ORDINARY WAGES
A few examples of payments that should be considered as “ordinary wages” include:
- Installment Payment (e.g. payments made every other month);
- Prior Year Incentive Pay (e.g. incentive pay based on previous year work performed);
- Present Year Incentive Pay if Not Based on Performance (e.g. all employees receive even if lowest performance rank);
- Prorated Daily Wages; and
- Wages Based on Years of Employment.
EXAMPLE OF PAYMENTS TO NOT INCLUDE IN ORDINARY WAGES
A few examples of payments that should not be included in ordinary wages include:
- Present Year Incentive Pay Based on Performance;
- Non-Negotiated Wages (e.g. wages determined by future negotiations);
- Wages Paid based on Working at a Fixed Date; and
- Wages Paid based on Working for a Certain Number of Days.
I will explain the rationale for each of this situations in future posts.
Please do your company a favor and get a proactive adviser to discuss these matters with you. I have been preaching about this risk for years and a proactive counsel could have structure payment schemes to lessen this type of risk.
New York Attorney Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
He is the only non-Korean attorney to have worked for the Korean court system and one of the first non-Koreans to be a regular member of a Korean law faculty. He has, recently, been rated one of only two non-Korean attorneys as a leading attorney working in Korea by AsiaLaw.
- Definition of “Ordinary Wage” in Korea: Korean Employment & Labor Law Basics
- Ordinary Wages and the Principle of Good Faith in Korea: How long should the principle be applied to Korean CBA?
- IPG’s Korean Employment & Labour Law Chapter in Global Legal Insights 2018
- Korea Expands Definition of Discriminatory Treatment for Non-Regular Workers: Employment & Labor Law Update
- Choice of Law Issues in Employment Disputes in Korea
- Korean Employment Law & Labor Law amendments under Pres. Moon Administration