2. The costs incurred after the appeal shall be borne by the Plaintiff.

A. Status of the parties

The defendant is a juristic person established for the purpose of the lodging, security, etc. of schools of various levels or general facilities, and the plaintiff was employed by the defendant and served as the security guard of ○ Elementary School from June 1, 2009 to December 21, 2009, and as the security guard of △△ Library from January 1, 2010 to November 21, 2010.

(b)Agreement on supply of labor;

The main contents of the employment contract between the plaintiff and the defendant are as follows:

1) ○ elementary school

Table working hours and rest hours included in the main sentence: 08:0 to 00 from 17:0 to 19:00 to 19:00 meal hours: 06:00 on the following day: 9 hours from 06:00 to Sundays: 13:00 to 08:00 on Sundays, 19:00 to 20:30 on the number of meal hours from 19:30 to 06:30 on the face of 19:30 on the five-day day and 10 on the face of 10:0 on the five-day day: 0 on the same day as Sundays working period: 0 on the five-day day, 00 on the five-day day: 00 to 00-day on the one-day day, 00 to 13: 10-day on the one-day and five-day on the other, 10-day on the one-day day on the five-day day off.

Note 1) 13 hours

2) △△ Library

Table working hours and rest hours included in the main sentence: 08:0 to 00 from 17:0 to 19:00 to 19:00 meal hours: 06:00 on the following day: 9 hours from 06:00 to Sundays 13:00 to 08:00 on Sundays 19:00 to 19:30 on the meal hours from 19:30 to 07:30 on the face of 11 hours:00 on the five-day day: 00 on the day and on the 111-day on the face of 0:0 on the day under five-day system: 0 on Sundays working hours from 09:0 on the day to 00 on the day, 00 on the day from 0 to 13:00 on the day, 00 on the day from 18:0 to 130 on the day, 20 on the day from 10 to 20 on the day.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 9, Eul evidence 1-1, the purport of the whole pleadings

2. The plaintiff's assertion

A. Main assertion

1) At least seven hours out of the hours expressed as “on-site break hours” under the employment contract of this case constitute waiting hours under the direction and supervision of the Defendant who is the employer for working hours or work, and the failure to pay wages for such hours is a violation of the Minimum Wage Act.

2) Therefore, the Defendant should pay the Plaintiff wages equivalent to 80% of the minimum hourly wage under the Minimum Wage Act for the said seven hours.

3) Specifically, with respect to the Defendant’s period of service at ○ Elementary School (from June 1, 2009 to December 21, 2009), the Defendant shall pay the Plaintiff wages of KRW 3,200 per 7 hoursx 1 hour per 1 hour per 191 day to the Plaintiff, (8,400 won at the lowest level 4,000 per 209) = 4,278,400, ② with respect to the period of service at △△△ Library (from January 1, 2010 to November 21, 2010), KRW 3,288, per 30 hours per 303 hours per x1 hour per 303 day per total working day (minimum level 4,10% per 20% per 2010) = 6,973,848,281,285,218,285).

4) Meanwhile, with respect to the difference in retirement allowances, the total amount of wages paid during the period from August 22, 2010 to November 21, 2010 (92) falling under the three months before the Plaintiff’s retirement is KRW 2,400,00 per month, and the wages that can be additionally paid for the said 92 days upon the Plaintiff’s claim in this case are KRW 1,979,376 [the total amount of wages shall be KRW 86 days per 86 days per working day (Deduction 6 days per business day)] 7 hours per 1 hour per 3,288,76 [the total amount of wages that must have been paid to the Plaintiff for the said 92-day period 4,379,376 won], and thus, the Defendant shall pay the unpaid amount of retirement allowances to the Plaintiff 2,108,786 [the average wages 14,67,379/196.36 days per 197.6 days [the amount of retirement allowances already paid] 2.36 days per 1636 days per 46.7.6 days

B. Preliminary assertion

1) Under the employment contract of this case, the Defendant is obligated to guarantee the Plaintiff’s recess hours. Nevertheless, the Defendant violated the obligation to guarantee recess hours by prohibiting the Plaintiff from going out of recess hours and allowing the Plaintiff to actually work for sporadic work. In addition, the Defendant violated the obligation to guarantee recess hours by running the rest rest hours as a waiting time that is considered as actual working hours by prohibiting the Plaintiff from going out of recess for the purpose of intermittent work.

2) The damages suffered by the Plaintiff due to the Defendant’s nonperformance of its obligation to guarantee recess hours under the above employment contract is equivalent to the minimum wage.

3) Therefore, the Defendant shall pay to the Plaintiff the amount equivalent to the wage as seen earlier KRW 11,252,248 as well as KRW 941,826 as damages equivalent to the difference between the retirement allowance and retirement allowance.

3. Determination

A. The term “working hours” under the Labor Standards Act refers to the hours during which a worker provides labor under the direction and supervision of the employer. Even if an employee does not actually engage in his/her work during working hours, it does not guarantee the free use of the employee as a rest time, but is actually under the employer’s direction and supervision, it shall be included in working hours (Supreme Court Decision 2006Da41990 Decided November 23, 2006). Therefore, whether waiting time, break time, and sleep time, etc. may be included in working hours should be determined on the basis of whether the employee is still under the employer’s direction and supervision, not by freely using the hours, and on the basis of the frequency in which the employee is still under the employer’s direction and supervision, the number of working hours, the contents and quality of the relevant work, and whether the actual break time, other than formal, is guaranteed.

B. In full view of the following circumstances as a whole, it is difficult to view that the substance of the recess hours under the employment contract of this case constitutes the waiting time in which the actual work hours or work hours can be deemed as the actual work hours, in full view of the following circumstances as a whole: (a) health class; (b) evidence Nos. 2-1, 2, 5, 6, and 15-1, 2, 16, and 19-1, 15-2, 16, and 19; (c) a part of the non-party witness of the first instance trial; and (d) the non-party witness of the Seoul ○ Elementary School

1) The Plaintiff’s work at the ○ Elementary School and △△ Library is a main agent for crime prevention and protection, guard for protection, or patrol, and the Plaintiff’s work on duty or during the process of preparing a log check or a security check check at the time of or around the start of guard or patrol, or during the process of the check-up on duty, such as a short circuit, a short circuit check, facility check, a door or door door or corridor window, etc., operation and cancellation of the unmanned electronic guard system, surveillance through CCTV, support for the entry of waste collection vehicles, well-paid oil, and food material delivery vehicles, etc. It cannot be deemed that the nature of the work does not constitute a surveillance work with a low level of density or strength compared to ordinary work.

2) In addition, the Plaintiff’s work constitutes a intermittent work and is difficult to clearly distinguish work and rest due to the high time of recess or waiting time.

3) The ○○ Elementary School and the △△ Library have a room for workers on duty equipped with television, coolants, bedclothess, etc. so that they may take rest or water surface in a state of exclusion from shoes and clothes, so that they may rest in schools or libraries at a place independent of the place.

4) The unmanned electronic security system has been established in ○ Elementary School and △△ Library to prevent and cope with fire, theft, etc., and thus, the unmanned electronic security system is in charge of the primary security work. If such unmanned electronic security system is operated, the plaintiff is also unable to return to the mind. (On the other hand, Article 6(5) of the Regulations on Duty and Emergency Service of Public Officials belonging to the Superintendent of the Seoul Metropolitan Office of Education (Evidence No. 5) of the Seoul Special Metropolitan City Office of Education (Article 6(5) of the Regulations on Duty and Emergency Service of Public Officials belonging to the Office of Education (Evidence No. 5) provides that the head of each agency shall take complementary measures such as the installation of

5) There is no trace that the Defendant individually and specifically instructed expenses or patrol while working for the Plaintiff, or demanded a separate report on the Plaintiff’s work status.

6) The Plaintiff’s work at the Plaintiff’s ○ Elementary School did not undergo surveillance by school staff, etc. while on duty, unless an emergency situation occurs, since it is performed after the day or after the weekend, and is also similar to the work at △△ Library.

7) Although there was no Defendant’s interference with, or specific direction and supervision over, the Plaintiff was able to freely choose the time of patrol inspection, rest, and sleep time to a certain extent.

8) It appears that there is no urgent situation, such as fire and theft, during the work period of the Plaintiff’s ○ Elementary School and △△ Library (in the case of △△ Library, evidence 13-2, records 1, 79-81, 134-142, 385-38, 394, 394, and patrol inspection, etc.). This is also true in light of the fact-finding results on the head of ○ Elementary School in Seoul, ○○, and △△ Elementary School, as revealed in the result of the fact-finding on the head of ○ Elementary School in Seoul, 2013, 3 times a day from September 1, 2013, and the operation and cancellation of the ○ Elementary School and the unmanned Electronic Security System regardless of Sundays, and there are no special circumstances and measures taken against them).

9) The contents of the Plaintiff’s work are different from the content of the security guards’ work at apartment sites where the employees of the apartment management office patrols the work site on duty, and closes or divings the employees, and as such, it cannot be deemed that they were completely off from the employer’s command and order during the hours of recess hours, given that the employees of the apartment management office are different from the contents of the security guards’ work at apartment sites where the occupants enter 24 hours

10) Granting a recess to an employee is physical or mental way when the employee continues to work, and thus, the purpose is to restore the way and reduce the right of the employee to ensure and maintain his/her desire to reproductive and work. Therefore, working hours are not included in working hours because the employee completely goes out of his/her command and supervision over his/her work hours during the recess hours. However, working hours are part of the limited hours from the beginning of the work to the ending of the work, and it is inevitable to place restrictions on the employer to a certain extent to continue the following work. Thus, it is not unlawful to restrict going out to a certain extent or restrict the employer’s place and method of using the recess hours to a certain extent for maintaining the minimum order in the workplace. Moreover, in cases where the hours and time of recess are included repeatedly due to the surveillance and control nature of surveillance and control, it is difficult to view that the Plaintiff could not be subject to the employer’s free command and supervision of working hours from the time and time to the end of the work hours, and thus, it is difficult to view it as an employer’s actual waiting and leaving the work hours.

11) Taking account of the characteristics, contents, and form of the Plaintiff’s work, etc., the work is deemed to have a low level of surveillance and control nature, and thus, it is difficult to calculate “actual working hours.” The Plaintiff and the Defendant concluded an employment contract in the instant case and prepared a supervisory and enforcement confirmation document (Evidence 19) to understand such work characteristics and determine working hours, and agreed on the calculation of wages accordingly. Therefore, it can be deemed that the Plaintiff and the Defendant reached an agreement with the intent that the work hours are included in intermittent work and wages under the agreement that may occur during the recess hours due to the characteristics of the work, etc. when concluding the employment contract in the instant case, and that the work hours are included in the prescribed working hours and wages under the agreement. In other words, even if the work hours were set in the instant employment contract but the actual working hours were set below, it is reasonable to deem that the Plaintiff’s intention confirmed and signed that the work hours were more than those under the employment contract in the instant case, regardless of whether the actual working hours or not.

C. Therefore, the Plaintiff’s primary and conjunctive assertion on the ground that recess hours under the employment contract of this case fall under the waiting time when actual working hours or working hours are considered as working hours is without merit.

4. Conclusion

Therefore, all of the plaintiff's main and conjunctive claims are dismissed as they are without merit, and the judgment of the court of first instance which dismissed the plaintiff's main claims is just, and the plaintiff's appeal and conjunctive claims added in the trial are dismissed as they are without merit. It is so decided as per Disposition.

Judge Spanwon (Presiding Judge)

(1) The evidence No. 1-1 stated “11 hours” in the evidence No. 1-1, but if the hours of meal hours of 23 hours in total and 8 hours agreed to be actual working hours are deducted, the actual contractual break hours are 13 hours and the “11 hours” appears to be clerical error.

(2) While working at ○○ Elementary School, the Plaintiff seeks 80% of the lowest level of pay in order not to discuss whether the Defendant, an employer, has obtained an approval from the Minister of Employment and Labor to exclude the Plaintiff from the application of the provisions on working hours, recess and holidays as stipulated in Articles 4 and 5 of the Labor Standards Act.