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(영문) 서울중앙지법 2019. 11. 7. 선고 2017가합562931 판결

[임금] 확정[각공2019하,1119]

Main Issues

In a case where Gap corporation employed by Gap corporation with the main purpose of selling native water and cosmetics, and sells cosmetics, etc. at Gap's stores of each department store nationwide, and its regular working hours are from 09:30 to 18:30, and Gap corporation had Gap corporation work early to 09:00 and ordered Gap corporation to complete 09:30,00 in accordance with the guidelines of "ging string cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling.

Summary of Judgment

A corporation employed by Gap corporation with the main purpose of selling native water, cosmetics, etc. and selling cosmetics, etc. at Gap's stores of each department store nationwide, and the regular working hours are from 09:30 to 18:30, and Gap corporation started to work early to 09:00 and ordered Gap corporation to complete the cling business and the cling-out wearing-out, etc., in accordance with the guidelines of "ging-up cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling cling

In light of all the circumstances, the case dismissing the claim of Eul et al. on the ground that it cannot be recognized that Eul et al. regularly worked more than 30 minutes than 09:30 minutes prior to the regular attendance hours and ordered Eul et al. to complete 09:30 minutes prior to the regular attendance hours, or that Eul et al. worked at around 09:00 each day under the actual direction and supervision of Eul et al., and provided actual labor.

[Reference Provisions]

Articles 50(1), 53(1), and 56 of the Labor Standards Act

Plaintiff

See Attached 1’s List of Plaintiffs (Law Firm Inn, Attorneys Kim Sejong-hee et al., Counsel for the plaintiff-appellant)

Defendant

샤넬코리아 유한회사 (소송대리인 변호사 배현태 외 1인)

Conclusion of Pleadings

October 22, 2019

Text

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The defendant shall pay to the plaintiffs 6% interest per annum from October 1, 2017 to the service date of a copy of the application for change of claim and cause of claim in this case, and 15% interest per annum from the following day to the day of complete payment.

Reasons

1. Basic facts

A. The defendant is a company whose main purpose is to sell native water and cosmetics, etc., and the plaintiffs are employees employed by the defendant and selling cosmetics, etc. at each department store nationwide.

B. The Defendant, including the Plaintiffs each month, distributed the “groging groging grogs” (hereinafter “instant guidelines”) to the sales staff of the department stores, and demanded them to comply with the guidelines set by the Defendant, etc., and the instant guidelines specifically specify the Defendant’s products to be used for each part of cremation (i.e., groging, isolation, and four days) or the method of wearing liquid grogs.

C. The Defendant sent mecl and native products, etc. in accordance with the instant guidelines to the Defendant shop of each department store nationwide in proportion to the number of regular employees, and the Plaintiffs, using the pertinent products kept in the store after their work, completed mecl business, etc. in accordance with the instant guidelines, and prepared an opening point, such as cleaning the store, etc.

D. The plaintiffs' regular hours of work under the labor contract between the plaintiffs and the defendant, or under the collective agreement or employment rules of the defendant (However, the regular hours of work at the morning are 1:00), and the opening hours of domestic department stores are 10:30.

E. The main contents of the Defendant’s labor contract and collective agreement related to the instant case are as follows.

(3) In the case of domestic cosmetic working hours, more than 0 hours shall be determined separately in accordance with the characteristics of the business, and in the case of domestic cosmetic working hours, the working hours shall be from 30:00 p.m. to 0:0 p.m.: Provided, That the working hours of the employees to whom the company is obliged to do so shall be determined by the 1st 8th 1st 8th, 40 week, and 5th 1st 5th 200 in principle. (2) In the case of overtime work hours of the 8th 20th 1st 8th 1st 1st 1st 200, the number of employees who are subject to the 1st 8th 2nd 2nd 2nd 4th 2nd 2nd 2nd 2nd 4th 2nd 4th 2nd 2nd 4th 2nd 3th 2nd 3th 200 st 2nd 5th 2nd 3th th 2nd 3th 2nd 2nd 3th m.

Note 1) Collective agreement

[Reasons for Recognition] Facts without dispute; Gap evidence Nos. 1 through 4; Eul evidence Nos. 7 and 10 (including each number; hereinafter the same shall apply); non-party 1's testimony and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiffs' assertion

The Plaintiffs’ regular working hours are from 09:30 to 18:30, and the Defendant had the Plaintiffs work early to 09:00, and ordered the Plaintiffs to complete the merc work and the wearing of liquid books according to the instant guidelines. The time when the Plaintiffs are equipped with merc work and uniforms, etc. in accordance with the instant guidelines falls under the working hours prescribed in Article 50 of the Labor Standards Act as the time for an essential act directly or indirectly connected to the performance of their original duties under the employer’s direction and that falls under the working hours for an essential act that is directly or indirectly connected to the performance of their original duties. Accordingly, the Defendant is obliged to pay the Plaintiffs overtime allowance for overtime work that the Plaintiffs worked early during the period from July 2014 to August 2017 (hereinafter “instant request period”).

B. Defendant’s assertion

1) The Defendant did not explicitly or implicitly instruct the Plaintiffs to work at an early 30 minutes prior to the regular working hours and to complete the mercke business and the wearing of liquid books according to the instant guidelines by 09:30.

2) The Defendant set one hour from 09:30 to 10:30 to one hour to the Plaintiffs as hours for opening store stores including merck business, and pays wages included in work hours. The hours for opening store are sufficient hours.

3) Where it is necessary to overtime work due to inventory inspection, storage of products, etc., the Defendant received a separate application for overtime work and confirmed it, and paid allowances for actual overtime work hours. However, there is no objective data or evidence to deem that the Plaintiffs performed overtime work for every day corresponding to the number of working days during the instant request period.

3. Determination

A. Article 50(1) of the Labor Standards Act provides that working hours shall not exceed 40 hours a week, excluding recess hours, and Article 53(1) of the Labor Standards Act provides that working hours may be extended within the extent not exceeding 12 hours a week, if agreed between the parties concerned. Work hours refer to the hours during which an employee is under the direction and supervision of the employer and provides labor under an employment contract. The above provision is a provision that intends to restrict the excessive working hours of workers, and working hours refer to actual working hours (see Supreme Court Decision 92Nu9766, Nov. 24, 1992).

B. In light of the above legal principles, according to the health class, Gap 5, 7, 10, 19, and 23 evidence or images, the following facts are stated as follows: ① The defendant’s vice head working at the store management manual prepared around July 1, 2015 by the non-party 1 and the defendant’s vice head are working at the store management manual as if the current number of carzers were accused of coercions even at the time of 9:30 minutes. The present number of carzers are the same time as the time they work at the vehicle. It is true that it would work more than 9:30 minutes, or 20:30 minutes more than 11:0 :00 :00 : 2.00 . 30 . . . . . . . . . . . . . . . . . . . . . . . .. .. .. ... .. ...... ........... ..................... ............... .............................................

However, in full view of the following circumstances that can be seen by adding up the purpose of the entire pleadings to the testimony of Nonparty 1, as stated in the evidence Nos. 1 through 9 and 12 and the witness evidence, the facts and the evidence alone acknowledged as above are insufficient to recognize the fact that the Defendant instructed the Plaintiffs to complete the mecke business, etc. in accordance with the instant guidelines by 09:30 hours prior to the regular work hours of 09:30 minutes prior to the regular work hours of 0,000, or that the Plaintiffs were to work for 30 minutes prior to the actual work hours of 0 minutes prior to the instant request period under the Defendant’s actual direction and supervision, and there is no other evidence to acknowledge otherwise.

1) On July 1, 2015, the Defendant’s non-party 1’s statement that he or she was responsible to attend the store for 20 to 30 minutes prior to the regular attendance hours is discovered. However, after the pertinent statement, he or she examined the following: “The date on which the new month begins, on which a large and small exercise is planned, on the delivery date of new products, on the finished of one month,” and on the other hand, he or she considered how to see that he or she has come to her time different from that on the preparation of the first half?” The above statement can be interpreted to the effect that early attendance is necessary in the event of special circumstances, such as the preparation for the event, etc. ② The above material deals with the Defendant’s basic educational materials on the overall sales of the store, and it is difficult for the Defendant to complete 0 to 30 minutes prior to the Defendant’s regular attendance, and it is difficult for him or her to complete 10 minutes prior to the Defendant’s work.”

2) 피고의 단체협약(제59조 제3항), 취업규칙(8.2.), 업무매뉴얼(연장근무 부분)에서는 연장근로를 하려면 사전에 시간외근로 신청서를 제출하고 상급자의 승인을 받도록 정하고 있는 사실은 앞서 본 바와 같고, 실제로 ○○백화점 ☆☆점, ▽▽백화점 ◎◎점, ◁◁백화점 ▷▷▷점 등의 피고 소속 판매직원들은 2017. 6.경 재고 조사, 행사준비 등으로 인하여 조기 출근의 필요성이 있는 때에는 사전에 시간외근로를 신청하고 09:00 이전에 출근하여 계획한 업무를 수행하였던 것으로 보인다.

3) In addition to the fact that the Plaintiffs reported to Nonparty 2 to work as seen earlier on January 2017, there is no evidence to prove that the Defendant had reported to work early around 09:00 during the remainder of the instant request period, and that Nonparty 2 had worked at the Defendant’s bar, etc. on a regular basis. Meanwhile, although Nonparty 2’s vice head received a report to work at the Defendant shop’s point in the department store and the employees around January 2017, the Defendant argued that Nonparty 2 received a report to work for a limited period of time on January 2017 from some store employees and submitted e-mail or Kakakakaoooo amp as evidence, among employees who had reported to work at the time, Nonparty 2 sent to Nonparty 2 on a temporary basis after 09:00.

4) Among the instant request period, the Plaintiffs did not have to record commuting to work for about 09:30 minutes, which is almost every regular work hour, from around 09:00 to about 09:00. The details of CCTV images and transportation cards submitted by the Plaintiffs are all taken or collected after the instant lawsuit. Unlike the Plaintiffs’ assertion, it is difficult to confirm whether the Plaintiffs were to work early at around 09:0 in CCTV images of the department store.

5) The Plaintiffs asserted that, after they worked at the Defendant shop in the department store, the number of hours required to prepare for opening points (to walk up with uniforms, insignias, computer systems, etc.), to carry out all the tasks such as preparation for opening points (to walk up with the computer system), grooming, cleaning of stores, and participation in the event of the department store, etc. However, in light of the aforementioned evidence and the overall purport of the arguments, it is inevitable to conclude that the time required to prepare for opening points including the cream business, etc. in accordance with the instant guidelines exceeds one hour clearly, or that early attendance of 30 percent is inevitable, or that the Plaintiffs were under the Defendant’s actual direction and supervision without autonomously using the time from 09:0 to 09:30, the regular attendance hours from 09 to 09:30.

C. Therefore, the claim of this case based on the premise that the plaintiffs worked early 30 minutes each day for almost every working day of the deadline for request of this case and actually provided labor under the labor contract to the defendant is without merit without examining further.

4. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] Claim List: omitted

Judges Choi Jong-dae (Presiding Judge)

1) The main contents of the Defendant’s collective agreement from 2012 to 2018 related to this case are substantially the same. However, the end hours of business under Article 58 of the collective agreement were amended from 2016 to 800:00 hours from collective agreement in 2016.

참조조문

- 근로기준법 제50조 제1항

- 근로기준법 제53조 제1항 (위헌조문)

- 근로기준법 제56조 (위헌조문)

본문참조판례

대법원 1992. 11. 24. 선고 92누9766 판결

본문참조조문

- 근로기준법 제50조

- 근로기준법 제50조 제1항

- 근로기준법 제53조 제1항