(b) The case holding that it is not possible to claim overtime, night, or holiday allowances in addition to the allowance on duty, in light of the fact that radiation department or clinical pathology and employees have sufficiently recognized that only the allowance on duty is paid in return for the work on duty at the time of employment contract while the work on duty is mainly engaged in radiation shooting, pathology test, etc.;

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 1483, Sep. 13, 1983) (Gong1983, 1483, 1483, 1987)

Litigation costs are assessed against the plaintiffs.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

A. Since January 1988, the Plaintiffs have been employed as a staff of the radiation and clinical pathology of the Defendant Hospital.

B. According to the employment rules, collective agreements, etc. of the Defendant Hospital, the Plaintiffs provide that the Plaintiffs shall work 8 hours (09:0 to 18:00, however, from November 1 to February 28, 201, which falls under the same season, 09:0 to 17:00), and 4 hours (09:0 to 13:00) from Saturdays.

C. In addition to the ordinary working hours under the above provision, the plaintiffs were engaged in overtime work and night work between January 1, 198 and May 31, 1990, in accordance with the Rules on Watchkeeping in the Defendant Hospital, and were engaged in overtime work and holiday work for nine hours by working for two months from 09:0 to 18:00. In the case of overtime work conducted on one-time basis in two months, the plaintiffs were engaged in overtime work and holiday work for 18:00 hours after the end of the ordinary working hours to 09:00 of the following day, and were engaged in overtime work for 15 hours and 8 hours (in the case of overtime work on one-time basis, 18:0 to 24:00 hours additional, and in the case of overtime work on one-day basis, from 130 to 18:00 hours following the said day to 200 hours (in the case of overtime work on one-day, from 200 to 29:0 hours following the said day).

D. The Plaintiffs have been engaged in the same work as in the ordinary working hours of the ordinary day by viewing various kinds of pathology tests and radiation shootings during the working hours of the above worker on duty (day or night duty).

E. However, the Defendant hospital paid KRW 3,000 for 1 day on duty in lieu of payment of overtime work hours, night work, and holiday work allowances (However, in the case of Saturdays, KRW 5,000 for Saturdays) from June of the same year, and paid only KRW 5,000 for 5,00 for 1 day on duty in lieu of payment of overtime work hours, night work, and holiday work allowances as above (However, in the case of Saturdays, KRW 8,000 for Saturdays).

F. In addition, the Defendant hospital paid performance allowances (a hospital allowance), technical allowances, risk allowances, food allowances, etc. in addition to the basic pay to the Plaintiffs in accordance with the collective agreement, remuneration regulations, and welfare regulations. The Defendant hospital calculated the aforementioned allowances by including only the basic pay, technical allowances, and risk allowances among the above allowances in the ordinary wage calculation.

2. The plaintiffs are responsible for the claim of this case based on the above alleged work environment and wage payment situation. The defendant asserts that the plaintiffs are obliged to pay overtime work beyond the ordinary working hours under the rules of employment of the defendant hospital during the period from January 1, 198 to May 31, 1990, which is the original extension of work beyond the above ordinary working hours under the rules of employment of the defendant hospital, and as to overtime, night, holiday work hours as above, the basic pay, performance allowance, technical allowance, risk allowance, food allowance, etc. of the above paragraph (1) and the ordinary working hours calculated based on ordinary wages including the above paragraph (1) are the duty to pay overtime, night, and holiday work allowances. In the aggregate of the above legislative allowances, when the plaintiffs seek additional payment of the remaining amount after deducting the worker's work allowance under the above paragraph (e) already received, the defendant is naturally required due to the nature of the original work and thus, at the time of entering into a labor contract with the plaintiffs, the plaintiffs are not obliged to pay overtime work hours beyond the original rules of employment contract and overtime work hours.

3. Therefore, considering the following facts, Gap evidence Nos. 2, Gap evidence Nos. 3, Gap evidence Nos. 4, Gap evidence Nos. 5, Gap evidence Nos. 8, Gap evidence Nos. 9 (Establishment of Remuneration Regulations), Eul evidence Nos. 1, 2, Eul evidence Nos. 3 (Emergency Service Date of September 1, 1989), Eul evidence Nos. 4, Eul evidence Nos. 5 (Emergency Service Date of September 16, 1989), Eul evidence Nos. 6 (Emergency Service Date of October 16, 1989), Eul evidence Nos. 7 and 7 of evidence Nos. 1989 (No. 1, 1989) and evidence Nos. 16 of Eul's testimony and evidence No. 799 (No. 1, 1989) are inconsistent with the purport of testimony and evidence No. 97 of the witness testimony of each of the following witness's testimony.

A. The Defendant hospital requires that the patient be on an annual leave of absence in order to maintain the patient’s life and health in light of the nature of the hospital’s business. Accordingly, it is unnecessary for more than one medical technician to stay at all times in order to prepare for the medical treatment of the patient who is at night and other unexpected situations in the radiation department, clinical pathology department, etc. where the plaintiffs work.

B. Under such characteristics of the Defendant hospital’s service, the Defendant hospital imposed a duty on duty on employees under Article 37 of the rules of employment, while the rules of work on duty established and implemented on July 30, 1984 classify the duty on duty to be on duty to be on duty to the management department (Article 3(1) of the above rules of employment). The employees on duty to be on duty are responsible for the diagnosis and treatment of patients and patients in the emergency department, the functions and security in the relevant medical institution, contact and report on medical treatment, the radiation department, the inspector, the nursing department, and the medicine department provide that the employees on duty shall prepare, keep, and manage the log on duty under the supervision of the head of the office, and other matters necessary for medical treatment (Article 4(2)), and the employees on duty are responsible for the diagnosis and treatment of patients and patients in the emergency department and the functions and security maintenance in the relevant medical institution under its jurisdiction (Article 9(2) of the above rules of employment).

C. In addition, the remuneration rules of the Defendant Hospital and the rules in force stipulate that the day duty allowance and night duty allowance shall be paid to employees who have worked day duty or night duty, but for those who are paid day duty allowance, the day duty allowance shall not be paid to those who are paid day duty allowance, and the day duty allowance shall not be paid to those who are paid night duty (Article 9 subparag. 10 of the Regulations on Remuneration).

D. Meanwhile, the Defendant Hospital trade union also provides that, under the premise that an employee who shall be on duty on night and holiday duty is naturally required due to the nature of the work of the Defendant Hospital, the fixed premium shall be paid for overtime hours, night hours, and holiday workers under Article 35 of the collective agreement concluded on January 16, 1990, but the Defendant Hospital trade union uniformly provides that only KRW 5,000 (or KRW 8,000 in case of Saturdays) shall be paid as an allowance for night duty.

E. The Plaintiffs concluded a labor contract with the Defendant with the knowledge that only the duty allowance should be paid as wages in return for the duty of watchkeeping, by fully recognizing the fact that the duty of watchkeeping should be performed at night and on holidays due to their nature at the time of joining the Defendant Hospital.

F. During night duty hours, the Plaintiffs were ordinarily 18:0 to 22:00 during night duty hours, and the following day from 06:00 to 08:00 on the following day, the Plaintiffs were to take a photograph of radioactive rays of the patients and conduct various inspections. From 22:00 to 06:00 on the following day, the Plaintiffs were to take a break, such as viewing television or taking a break by using a small wave and shot, etc. installed at the hospital, etc., and were to conduct an scriptive or simple scriptive inspection on the part of the emergency patients via an emergency room at night.

G. As above, the number of patients performing radiation photographing or pathology testing during night duty hours is considerably less than the number of patients occurring during day duty hours and more crack down.

(h) The content of the work performed during the day duty hours by the Plaintiffs during which the Plaintiffs are on holidays is considerably minor and intermittently limited to the work performed during the day duty hours, as in the said night duty hours, in qualitative and quantitative aspects, compared to the work performed during the day duty hours.

4. In general, daily work and night work is a separate work from the original work, and it refers to controlling minor work such as monitoring of workplace facilities, receipt of emergency documents, telephone, or preparation for other accidents. Such daily work and night work are performed by instructions or practices based on the rules of employment (such as party work rules) or the employer's general direction and supervision authority, and there is an incidental employment contract separate from the original work. Thus, different daily work and night work from the original work and night work are not considered as overtime work and there is no problem of payment of allowances under Article 46 of the Labor Standards Act. Thus, if the plaintiffs agreed that daily work and night work are essential in terms of the nature of their work and night work at Defendant hospital, and the plaintiffs are to receive allowances for night work in accordance with the rules of employment and night work, and if they agreed that the plaintiffs are to receive allowances for night work in accordance with the rules of employment and night work, it should be viewed that they are to receive allowances for day work separately from the original work and the contents of the employment contract, it should be viewed that the plaintiffs are to receive allowances for day work.

5. Accordingly, the plaintiffs' respective claims of this case seeking legal allowances under Article 46 of the Labor Standards Act on the premise that the plaintiffs' extension of their original duties during the hours of work on duty was done during overtime hours, night hours, and holiday work, are all dismissed, and the costs of lawsuit are assessed against the losing plaintiffs.

Judges Kim Jae-Jin (Presiding Judge) Jin-Jin Park Jin-hun