Article 2, paragraph 1, item 5 of the Korean Labor Standard Act defines the definition of the wage, and item 6 of the same act describes the average wage. In addition, the Enforcement Decree of the Labor Standard Act stipulates the ordinary wage so as to delineate the definition of the average wage and the ordinary wage to set a clear legal standard for the legal decision-makings. However such direct stipulation of ordinary wage in the enforcement decree without commission from the mother law - the Korean Labor Standard Act, encompass the problem in its legal scheme.
The article 6, paragraph 1 of the Enforcement Decree of the Labor Standard Act describes the meaning of ordinary wage as, “hourly wage, daily wage, weekly wage, monthly wage, or contract amount to be paid to a worker for a specifically agreed work or entire works on a regular and flat basis.” The definition in the decree act has been so far the legal basis for the Supreme Court’s decision making regarding the ordinary wages until recently. However the latest ruling of the Supreme Court shows a precisely changed position. Such disparity between court rulings lacking the full court decision and the estrangement from the administrative interpretations could create ripple in setting the wage allowances in work places, and is generating the disputable situations in between the labor and management sides. Also in the medical insurance union case in 1996, by taking the discord position from the previous rulings by announcing “Even in the case when the wage is paid to the worker passing the period of a month, if it is paid regularly and flat, than it is included in the ordinary wage”, violated the lawful precedent changing procedure.(Article 7 of the Court Organization Act _unanimous decision by the Supreme Court) This in a definite infringe of the procedural requirement considering the importance of the legal principles governing the ordinary wage. It seems that the Supreme Court discounted the meaning of the ordinary wage in its decision-making and did not anticipate the consequential disputes per se. Nonetheless if it had foreseen by the court in any means, it will not be excused from the criticism of intentional avoidance. Nevertheless, viewing the importance of the ordinary wages, the Supreme Court should make its proper full court decision by a clear unanimous procedure based on a genuine review.
Although it seems reasonable from its legislative purpose to insert the definition clause of the ordinary wage which now is in the article 6 of the enforcement act to the article 2 of the labor standard act, and to commission the practical judgement standard and its methods to the regulations of enforcement act, it would be yet far to take place unless the grand agreement between the labor and employer sides proceed in advance. As now seen from the extraordinary session of the National Assembly last June, the administrative interpretation of the ordinary wage should be regarded in its cogent decision-making in the Constitutional Court.