I. Introduction
Recent judicial rulings concerning rules for calculation and scope of ordinary wages have differed from Ministry of Employment & Labor guidelines, something which has caused much confusion for corporate management. Two major issues are the applicable scope of ordinary wages and whether weekly holiday work can be calculated as extended working hours.
“Ordinary wages” means wages which are determined to be paid periodically or in a lump sum to an employee for his/her prescribed work or whole work. This ordinary wage is used as the standard wage to calculate added allowance for overtime, night and holiday work, annual paid leave allowance, dismissal pay, and for paid leaves that employers have to provide under the Labor Standards Act. If this ordinary wage has not been calculated properly, it is not as simple as re-calculating and paying the correct amount from now on, but the employer shall recalculate all kinds of allowances such as overtime, night and holiday work, and other allowances that were paid over the past three years. Furthermore, the employer shall recalculate the severance pay for resigned/dismissed employees and pay the difference.
Work on the weekly holiday (Sunday) has not been considered as overtime hours (exceeding 40 hours per week) so far, but only as holiday work. A recent judicial ruling shows that as work on weekly holidays is work done in excess of 40 hours per week and is also holiday work, both allowances shall be paid. So far, companies have not followed Ministry of Employment & Labor guidelines that apply weekly holiday work to overtime, but have simply recognized it as holiday work. Due to this recent judicial ruling, it is expected that the maximum working hours per week will be limited to 52, and employees may file a collective lawsuit to receive unpaid overtime allowance for weekly holiday work that has not been given so far. Due to the fact that it has become a major source of disputes between employer and employees these days, in this article I would like to look into the applicable scope of the ordinary wage and the application of overtime allowance for work on weekly holidays.

II. Labor Disputes over Ordinary Wage
The major issues in calculating ordinary wages are related to determining payment period and items to be included in ordinary wages. Government guidelines stipulate that only one month periods shall be considered, whereas courts estimate it shall be decided whether the employer pays the wage to all employees regularly and uniformly. As for items to be included in ordinary wages, government guidelines judge whether those items are paid as remuneration for labor, whereas the courts look at whether the employer pays those items to all employees regularly and periodically.

1. Current Government Guidelines
(1) Bonuses
Current guidelines do not consider bonuses as ordinary wages, stipulating, “Bonuses are excluded from the realm of ordinary wages even if they are paid regularly.” Current regulations for “rules for calculating ordinary wages” explain the bonus as follows :
Name of payment made to employees Ord.
Wage Avg.
Wage Other
Paymt


⑥Bonuses
A. In cases where payment conditions, amounts, and payment rates are regulated in the Rules of Employment, or where employees are paid habitually and naturally expect to get paid: regular bonuses, exercise subsidies, etc.
B. In cases where payment is not made habitually, but paid temporarily or definitely in accordance with company profits according to the employer's discretion and favor



(2) Current guidelines stipulate that “Payments made for an employee's living costs or welfare, regardless of working hours” shall not be deemed as ordinary wages, but average wages.
Name of payment made to employees Ord.
Wage Avg.
Wage Other
Paymt
① Commuting allowance, vehicle maintenance subsidies
A. If rendered periodically and uniformly to all employees
B. If rendered variably according to the number of days in attendance or to a few employees
② Company housing allowances, winter fuel allowances, kimchi allowances
A. If rendered periodically and uniformly to all employees
B. If rendered temporarily or to a few employees
③ Family allowances, education allowances
A. If rendered uniformly to all employees regardless of marital status
B. If rendered only according to the number of family members or to a few employees (paid as child education allowances, employee training allowances, etc.)
④ Meals or meal allowances
A. If rendered uniformly to all employees by means of a labor contract, Rules of Employment, or etc.
B. Actual meals paid in accordance with the number of days in attendance



2. Judicial Rulings
Legal criteria for determining ordinary wages are as follows:
(1) Ordinary wages means wages that an employer pays to an employee as remuneration for his/her prescribed work or whole work, and those which are paid regularly and uniformly are considered ordinary wages in principle. In consideration of the purpose for legislating the Labor Standards Act and the function and necessity of ordinary wages, what should be included as ordinary wages shall be fixed wages paid regularly and uniformly, meaning non-fixed wages are not ordinary wages, as they are not paid regularly and uniformly and may or may not be paid, or the amount paid is according to actual work performance. Here, being paid ‘uniformly’ not only means payment is made to all employees, but also to all employees qualified according to certain conditions or criteria. Here, ‘certain criteria’ means ‘fixed conditions’ in considering the concept of ordinary wage that is designed to calculate ‘fixed and generally accepted regular wage.’ ;
(2) Even though a particular allowance or bonus, etc., may be paid for a period exceeding one month, if these are paid regularly and uniformly, these components can be included in ordinary wages.
(3) Mutual agreements between employer and employees that exclude a particular allowance considered ordinary wages according to the Labor Standards Act are null and void because such an agreement sets conditions lower than that of the Labor Standards Act.

(1) Bonuses and related cases
1) “As the regular bonus is paid regularly and uniformly (100% paid every even month) as fixed wages for labor service, it shall be considered ordinary wages stipulated in the Labor Standards Act.”
2) The bonus in this case is only applicable to employees working for six months or more with a certain amount paid quarterly, and calculated according to the number of years of service. This bonus is paid every quarter, distinguishing it from annual salary divided into monthly payments, but this difference in payment time does not preclude it from being considered as ordinary wage. As the bonus in this case has been previously fixed, it shall be considered ordinary wage as it is a fixed wage paid regularly and uniformly.
(2) Payments for an employee's living expenses or welfare, made regardless of working hours
1) “Exercise and winter-preparation allowances that the Medical Insurance Union has promised to pay to all employees once every year is money to be paid for their prescribed work or whole work and shall be considered ordinary wages as fixed wages paid regularly and uniformly.”
2) “Individual pension insurance premiums, summer vacation allowances, holiday travel allowances, gift allowances, etc. are closely related to employee provision of work. The individual pension premium has been paid every month by mutual agreement for the pension insurance, while summer vacation, holiday travel, an