¶40
(concurring) — While I agree with the result reached by the majority, I would reach that result through a different analysis. WAC 296-128-035, as it existed at the time the petitioners’ wages were allegedly delayed in violation of the rule and RCW 49.52.050(2), stated in part that “[a]ll wages due shall be paid at no longer than monthly intervals ... on established regular pay days.” Former WAC 296-128-035 (1989) (emphasis added). The petitioners were at that time subject to the provisions of a collective bargaining agreement under which an employee had the “option to request either overtime compensation or compensatory time” and under which it would “normally be the practice to pay overtime in money during the pay period following the pay period in which overtime is worked.” Clerk’s Papers at 135.
Madsen, J.¶41 The employees and the employer had thus agreed that overtime wages would not be due in the pay period in which they were earned, but would instead be paid in the following pay period. Accordingly, by express contractual agreement, payment for overtime was not part of “all wages due” within the meaning of former WAC 296-128-035 for the pay period in which the overtime was worked (and, it follows, not subject to the seven-day shift allowed by the rule). Instead, provided they were paid in the following pay period, they were paid when due, i.e., in a timely manner. In contrast, an employee’s regular monthly salary was part of “all wages due” for the pay period in which the employee’s regular hours were worked.
¶42 This approach accords with RCW 49.52.050(2) and RCW 49.52.070, the statutes under which the petitioners seek exemplary damages. RCW 49.52.050(2) makes it unlawful for an employer to “[wjilfully and with intent to *91deprive the employee of any part of his wages . . . pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract.” (Emphasis added.) Here, respondent Thurston County’s obligation to pay amounts due its employees arose under the collective bargaining agreement. By contract overtime wages were to be paid in the pay period following the period in which earned; overtime wages were not due under the contract in the pay period in which earned.18 Thus, within the meaning of RCW 49.52.050(2), no overtime wages were unlawfully withheld. It follows that the employees have no cause of action under RCW 49.52.070,19 whether under a theory of violation of former WAC 296-128--035 or violation of RCW 49.52.050(2).
¶43 Since the petitioners received their wages in accordance with their collective bargaining agreement, they were paid “all wages due” as required by former WAC 296-128-03520 and they have no cause of action under RCW 49.52.070. For these reasons, summary judgment in favor *92of Thurston County was appropriate and the trial court and the Court of Appeals are properly affirmed.
¶44 Finally, I comment briefly on the majority’s analysis. The majority focuses its analysis on the question of a bona fide dispute as to whether wages were due within the time period set out in former WAC 296-128-035 and treats this as a factual question. The material facts here are undisputed, however, and the only question, which is dispositive, is whether Thurston County acted “with intent to deprive the employee[s] of any part of [their] wages.” RCW 49.52-.050(2). In light of the collective bargaining agreement, the answer is no.21
¶45 I concur in the result reached by the majority.
C. Johnson, J., concurs with Madsen, J.
The majority maintains that not all forms of pay in addition to regular monthly salary come within the contractual provision. However, the provision is broad enough to encompass all pay over and above regular monthly wages, and the parties’ conduct under the agreement accords with this construction of the contract.
RCW 49.52.070 provides for a civil cause of action against an employer violating RCW 49.52.050(2) and recovery of exemplary damages of twice the amount of wages unlawfully withheld.
The majority goes to great lengths to find a violation of former WAC 296-128-035 rather than to give effect to the bargained for agreement of the parties as to what wages are due. The majority says that a collective bargaining agreement could not provide for any delay in payment and could not “supersede” former WAC 296-128-035, and that the collective bargaining agreement here conflicts with the rule and therefore is subordinate to it. This analysis ignores RCW 49.52.050(2), the governing statute, under which an employer’s obligation to pay wages may be established by contract, and the specific language in former WAC 296-128-035, which provides only that “wages due” must be paid according to the timing set out in the rule. If a collective bargaining agreement establishes that an employer is not obligated to pay certain types of wages during the regular pay period, as is true here, then no wages of this type are “wages due.” Accordingly, the collective bargaining agreement providing for delayed payment does not violate the former rule, regardless of the fact that the former rule did not speak of contractual provisions for payment of additional pay in intervals longer than one month. The contract is not “subordinate” to the rule.
Although the majority states that this conclusion is premature, it also states the principle that when there is no dispute as to material facts, a court may dispose of questions such as a determination of willfulness. Majority at 81-82. The majority agrees that the material facts are undisputed. Id. at 82. Accordingly, it is not premature to conclude as a matter of law that the employer did not act willfully with intent to deprive the employee of wages if the employer paid amounts due in accord with the parties’ collective bargaining agreement.