[임금등][집19(3)민,189]
A. As long as the parties have agreed to work within the limit of 60 hours per week by an agreement, even if they worked beyond 8 hours per day, this does not constitute an extension work under Article 46 of the Labor Standards Act.
B. Article 46 of the Labor Standards Act is the law.
C. In the event that a worker continues to work without using the annual paid leave, the right to claim wages on this holiday is not immediately terminated after the worker retired, and it cannot be said that the right to claim wages on this holiday was not exercised before the dismissal.
(a) insofar as the parties have agreed to work within the limit of 60 hours a week by an agreement, it cannot be said that it constitutes an extended time work under Article 46 of this Act even if it has worked beyond the limit of 8 hours a day.
B. The legislative intent of the so-called “payment shall be made in addition to 50/100 or more of the ordinary wages” under this Article is that the payment shall be made in addition to the ordinary wages for working hours, more than half of the ordinary wages.
C. It is reasonable to view that an employee may claim for wages equivalent to the number of days of his/her leave if he/she continues to work without using his/her annual paid leave, and such claim for wages cannot be said to have been extinguished by his/her retirement, and it does not occur even if he/she did not claim annual paid leave before his/her dismissal.
Articles 42, 46, and 48 of the Labor Standards Act; Article 33(2) of the Enforcement Decree of the Labor Standards Act; Article 48 of the Labor Standards Act
63Da980 delivered on June 2, 1964
Plaintiff
Korea Commercial Corporation
Seoul High Court Decision 70Na2264 decided June 23, 1971
(1) The part of the lower judgment on the annual paid leave claim is reversed, and that part is remanded to the Seoul High Court.
(2) The appeal against the remainder of claims other than those in the preceding paragraph is dismissed, and the costs of appeal against this part are assessed against the plaintiff.
(A) As to ground of appeal No. 1
In comparison with the provisions of Articles 42 and 46 of the Labor Standards Act, the term "hours under the preceding paragraph" under Article 42 (2) of the same Act shall be interpreted to include not only eight hours per day, 48 hours per week, but also 60 hours per week by an agreement between the parties provided for in the proviso of the same paragraph as well as 8 hours per week, as well as 48 hours per week. Therefore, in the labor contract of this case, working hours shall be limited to one week by agreement between the parties concerned, and even if working hours exceed eight hours per day, they shall not be deemed to constitute overtime hours under Article 46 of the Labor Standards Act. The judgment of the court below with the purport of this purport is just, and there is no illegality of a mistake in the rate, as alleged in the arguments are attacked.
(B) On the second ground of appeal:
According to Article 46 of the Labor Standards Act, “an employer shall pay for night work more than 50/100 of ordinary wages for night work.” The purport of the Act is that for night work, not less than half of ordinary wages are separately made in addition to ordinary wages for night work. The lower court’s recognition of 47.97 as an allowance for night work against the Plaintiff is justifiable in that it is the only amount of additional dues except for the basic wage. In addition, there is no error of misunderstanding of facts due to an error of calculation as alleged as an attack against the Plaintiff. In addition, even in the judgment on each claim for balance of paid leave allowances for parking and the monthly rent, there is no error of calculation as argued otherwise.
(C) On the third ground of appeal:
Article 48 of the Labor Standards Act provides that an employer may claim wages equivalent to the number of days of leave if an employee continues to work without using his/her leave at the time he/she requests the employee to pay his/her ordinary wages or average wages for a period of one year. (See Supreme Court Decision 63Da980 delivered on June 2, 1964) In such a case, the wage to be paid to an employee is included in the wage naturally paid as a paid and the ordinary wage for his/her paid holiday work as prescribed in Article 33(2) of the Enforcement Decree of the Labor Standards Act. Thus, it cannot be said that the right to claim the payment of wages does not have an objection to the extinguishment of the employee's retirement and that the employee did not exercise his/her right to claim the annual leave before his/her dismissal. Accordingly, the court below's determination that the employee cannot claim this holiday wage unless he/she exercises his/her right to claim the annual leave before his/her dismissal should be justified.
Accordingly, the part of the judgment of the court below on the annual paid leave claim is reversed, and this part is remanded to the Seoul High Court which is the court below. The remaining appeals by the plaintiff are dismissed, and the costs of appeal as to this part are assessed against the plaintiff. The supplementary appellate brief submitted by the plaintiff's agent as of December 24, 1971 is asserted after the prescribed period expires, and this part is not determined.
This decision is consistent with the opinions of the involved judges.
The presiding judge of the Supreme Court (Presiding Judge)