209Du229555 (Joint) Additional Work Allowances

209 Gohap22979 (Joint) Payment of overtime work allowances

209Du26049 (Joint) Excess duty allowances

Plaintiff 1 to 224 Law Firm Sam-il, Counsel for plaintiff 1-24

[Defendant-Appellant] Defendant 1

Plaintiff 1 through 224 Attorney Lee Young-young, Counsel for plaintiff 1 to 224

Plaintiff 225 to 248 Law Firm Jeong-soo, Counsel for the plaintiff-appellant-appellant

Attorney Na-young, Kim Sung-il

Busan Shipping Daegu

Law Firm Jeong-man, Counsel for the plaintiff-appellant

Attorney Na-young, Kim Sung-il

Attorney Lee Young-chul, Counsel for the plaintiff-appellant

2. ○○○

Busan Dong-gu

3. Guide ○○.

4. Kim○-○

Plaintiff (Appointed Party) 3 and 4 address Busan Shipping Daegu

Attorney Lee Young-young, Counsel for the plaintiff (appointed party) 2 through 4

Representative City Mayor Dognam

Attorney Cho Young-gu, Counsel for the defendant-appellant

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

3. Paragraph 1 can be provisionally executed.

A. As the plaintiffs, plaintiffs (Appointeds), and the designated parties were currently serving or retired in each fire station to which the defendant belongs, or their inheritors died on November 14, 2010 while serving in the lawsuit of this case, the deceased ○○○○, while serving on April 29, 2012, the deceased ○○○, who is the heir of the deceased ○○○○, Kim○, door-○, door-○, and so on, took over each procedure. The deceased ○○○, on July 20, 2009, the deceased ○○○, who was the heir of the deceased ○○○○○○, and the deceased ○○○○, who was his heir, tried to independently inherit the right to receive an excess payment of overtime service allowance to the defendant of the deceased ○○○○, who was a public official of the deceased ○○○○, and the deceased ○○, who was a fire officer, should be classified as the plaintiffs who were designated parties to the disaster (hereinafter collectively referred to as the "party designated parties to the plaintiff's.

(c) Foreign fire officers shall serve in the fire station in the form of two or three classrooms a day, two workers who work in the second or three classrooms a day are divided into two groups, and one day work in the form of 24 hours a day and work in the form of rest; three workers who work in the third class of a day are divided into three groups, and five days a day work in the form of five days to 09:00 through 18:00, a day work in the form of five days; five days a day work in the night work from 18:00 to 09:00 of the following day; five days a day work in the form of rest; five days a day;

D. Accordingly, the employees working for the third class work for about 240 hours each month (24 hours and 30 hours each month) and for about 48 hours (240 hours - 192 hours each month, which are the average working hours of public officials as stipulated in the Local Public Officials Service Regulations, and the two class work for about 360 hours each month (24 hours and 30 days/2) and work for about 168 hours each month in excess of the average working hours of the above month (360 hours - 192 hours) and work for night or holiday.

E. The provisions concerning overtime work, night work, and holiday work allowances (hereinafter referred to as "excess work allowances") among the guidelines for handling local public officials' remuneration work, etc. established by the Minister of the Interior and Safety (hereinafter referred to as "the guidelines for handling this case") are as follows:

[Guidelines 2010]

1. Work allowances (Article 15 of Regulations on Allowances, etc. for Local Public Officials);

(a) Public officials who have worked outside the working hours specified by the order of service;

* Work outside working hours means work hours outside the working hours of public officials prescribed by the Ordinance on the Service of Local Public Officials.

* [Attachment I] A table of Excess Work Allowances to be Paid

(b) Amount paid;

C. Scope of recognition

(1) A person eligible for overtime work allowance (limited to overtime work allowances);

In principle, a public official other than a person subject to ○○ Operations shall work within general hours of absence or retirement.

The hours of overtime work allowances among overtime work allowances: Within 4 hours a day, and 67 hours a month, but if necessary for budget reduction, etc., the head of a local government may reduce the payment hours, and where the head of a local government adjusts the premium rate within the range of 10 to 150 percent pursuant to Article 15 (2) of the Regulations on Allowances, etc. for Local Public Officials, etc., the maximum number of hours recognized for each premium rate shall be as follows:

A person shall be appointed.

(B) From the 2008 Guidelines, the head of the local government may reduce the time limit for payment if necessary to reduce the budget, etc. (from the 2008 Guidelines)

(2) On-site workers (over-time work, night work, and holiday work allowances shall be applicable);

○ A public official whose excessive work in the nature of the work is institutionalized, such as a current agency, an employee, or a shift worker.

○ Scope of recognition of overtime work allowances (the monthly payment period was changed from the instant treatment guidelines of Article 15(6) and Article 15(4) to paragraph (6) of the same Article of the Regulations on Allowances, etc. for Local Public Officials): Calculation of the number of hours between the scope of budget and the number of hours of pay.

• Where a person works overtime at least one hour a day, working hours shall be calculated per hour and shall not be included in the working hours per hour.

The hours after deducting working hours under the Regulations on the Service of Local Public Officials from the actual working hours (monthly) shall be calculated as overtime working hours.

*Calculation Method: Total working hours (monthly) - Working Hours (monthly) in Local Public Officials Service Regulations - Resting Hours (Monthly)(2010)(the Guidelines in this case added that break time is deducted from the Guidelines in 2010)

* The total working hours refer to the total working hours actually worked by the public official on a monthly basis except in cases of break time, etc. according to the type of work of each agency.

* The head of the administrative agency to which the present business entity belongs shall grant an appropriate break time (such as food time, break time, surface time, etc.) in consideration of the type of work of the present business entity (from the instant processing guidelines in 2010, the above contents were added).

* The working hours under the Local Public Officials Service Regulations shall be calculated pursuant to the provisions of Articles 2 and 3 of the Local Public Officials Service Regulations for the same working hours, including holidays under Article 2 of the Regulations on Holidays of Public Offices, leave period under Article 2 of the Local Public Officials Service Ordinance, and the period of education under Article 27-2(1)4 of the Decree on the Appointment of Local Public Officials.

2. Night work allowances (Article 16 of Regulations on Allowances, etc. for Local Public Officials);

(a) Persons eligible for payment: A person who works only at night or who works at night as a full-time shift worker (limited to persons eligible for full-time work);

* Scope of night: 22:00 to the next day 06:00

(b) Amount: Night work shall be based on the standard for eight hours a day (22:00 to 06:00), and the amount of pay per hour shall be calculated on an hourly basis x 1/226 x 0.5 x a unit price per hour, and the overtime work allowance and the amount shall be paid concurrently within budgetary limits;

○ Only a person who has appropriated the night work allowance budget and works for a regular working hours at night (22:0 to 06:00) shall be paid after calculating the actual night work hours.

* A person who works at night on a regular basis: A person who works only at night, a day-time or night-time shift worker;

3. Holiday work allowances (Article 17 of the Regulations on Allowances, etc. for Local Public Officials);

(a) A person who works on a holiday (excluding where he/she works on a holiday but on a holiday);

* Scope of Holidays: Holidays specified in the Regulations on Holidays of Public Offices [the 3 and 1st day of Sundays, national holidays, 3 and 1st day of luminous and luminous, January 1, 200, the New Year’s Day, the New Year’s Day, the New Year’s Day (the last day of December, January 1, 200), the New Year’s Day (the 5th day of May), the Children’s Day (the 6th day of June), the New Year’s Day (the 6th day of June), the New Year’s Day, the 5th day of August, 15, and the 16th day of August in the New Year’s Day), the election day of election at the expiration of the term under Article 34 of the Public Official Election Act, and other occasional days designated by the Government];

(b) Amount: 1/30 x 1.5 x 1.5 of the standard amount of salary per day of holiday work;

* The overtime work allowance and sick pay are not paid for the same working hours. The scope of recognition shall be determined by calculating the actual working days for a person who has appropriated the budget for a holiday work and who has worked particularly on a holiday in accordance with an order of work: The working hours shall be one day on a holiday work only when he/she has worked hours (0:0-18:00) equivalent to the daily working hours under the Local Public Officials' Ordinance on the Service of Local Public Officials. The overtime work hours shall be paid. * If a person who has worked on a regular working day and whose day substitute day is a holiday work on a holiday, he/she shall not be paid such allowance.

F. Based on the instant processing guidelines, the Defendant set the criteria for the payment of overtime work allowances and paid overtime work allowances to the Plaintiffs within the limit of 75 hours per month, thereby paying overtime work allowances at a level below the Plaintiffs’ actual overtime work hours.

【Ground of recognition】 The fact that there is no dispute, Gap's 12,21 (including virtual number; hereinafter the same shall apply), Eul's 1, the purport of the whole pleadings

2. Relevant statutes;

Local Public Officials Act

Article 44 (Principles of Determination of Remuneration)

(1) The remuneration of public officials shall be determined by rank, by position, or by class of duty so as to be suitable for the complexity of duties and the degree of responsibility: Provided, That the remuneration of public officials engaged in duties of very special degree of difficulty and responsibility, or in duties for which the filling of vacancies is difficult, or in duties of public officials in the series of research or special skills prescribed in

(4) No money or valuables may be paid as remuneration of public officials, unless it is provided for by this Act or other Acts and subordinate statutes.

Article 45 (Provisions concerning Remuneration)

(1) Matters concerning remuneration of public officials shall be prescribed by Presidential Decree:

1. Matters concerning salaries, salary classes and raises in salary;

2. Matters concerning allowances; and

3. Matters concerning payment method, calculation and other matters concerning the payment of the remuneration.

Article 30 (Payment of Allowances) of the Local Public Officials Remuneration Regulations

(1) In addition to a salary, necessary allowances may be paid to public officials within budgetary limits.

(2) Types, scope of payment, amount paid, and other matters necessary for the payment of allowances under paragraph (1) shall be prescribed separately by Presidential Decree.

▣ 구 지방공무원 수당 등에 관한 규정(2011. 1. 10. 대통령령 제22620호로 개정되기 전의 것, 이하 같다) 제15조(시간외근무수당)

(1) A overtime work allowance shall be paid to a person who has worked outside of working hours prescribed by an order to work within budgetary limits.

(2) An overtime work allowance shall be paid 70 percent (in cases of public officials in contractual service appointed on the open-type position among those in contractual service, 70 percent of the standard salary class for the class of the relevant annual salary class; 70 percent of the relevant amount in cases of public officials in contractual service who are not public officials in contractual service appointed on the open-type position, 70 percent of the relevant amount in terms of public officials in contractual service; hereinafter referred to as "standard amount of salary") to the relevant public officials, on condition that 15 percent of the amount of salary in the standard salary class applied per hour shall be paid, and where the head of a local government deems it necessary, he/she may make payment by adjustment within the scope of 10 percent to 15 percent.

(6) Matters necessary for standards, methods and collection, etc. of overtime work allowances shall be determined by the heads of local governments within the extent determined by the Minister of the Interior and Safety.

Article 16 ( Night Work Allowances)

(1) A night duty allowance shall be paid within budgetary limits to a person who works only at night or who works at night on a night basis or on a night-time basis.

(2) Night work shall be based on 8 hours a day, and 1/226 percent of the amount equivalent to the salary period referred to in Article 15 (2) shall be paid per hour. Article 17 shall be paid per hour.

(1) A holiday work allowance shall be paid to persons who work on holidays within budgetary limits.

(2) With respect to a holiday work allowance, 15/30 of the base salary referred to in Article 15 (2) shall be paid per day.

(3) Matters necessary for the payment of holiday work allowances, such as payment method thereof shall be determined by the Minister of Public Administration.

Local Finance Act

Article 36 (Compilation of Budget)

(1) Local governments shall calculate expenses according to reasonable standards within the extent prescribed by statutes and municipal ordinances and appropriate such expenses in their budgets.

Article 2 (Work Hours, etc. of Local Public Officials)

(1) A public official shall work a week for 40 hours, excluding occupancy trial hours, and in principle, Saturdays shall be off.

3. The parties' assertion

A. The plaintiffs' assertion

The Plaintiffs were working for more than working hours under the Local Public Officials Service Regulations while serving for the second or third class positions, and even though they worked at night or on holidays, the Defendant paid overtime work allowances only during a part of the actual overtime work hours, citing budgetary reasons.

Therefore, the defendant is obliged to pay the difference calculated by subtracting the excess payment from the actual overtime work hours, and damages for delay to the plaintiffs.

B. Defendant’s assertion

Articles 15 through 17 of the former Regulations on Allowances, etc. for Local Public Officials stipulate that overtime work allowances, night work allowances, and holiday work allowances shall be paid within budgetary limits. Article 15(6) of the above Regulations delegates to the head of a local government for the payment standards and methods of payment of overtime work allowances to the extent determined by the Minister of the Interior and Safety. Article 17(3) of the above Regulations delegates to the Minister of the Interior and Safety for the payment method, etc. of overtime work allowances to the extent determined by the Minister of the Interior and Safety. The instant guidelines established by the Minister of the Interior and Safety according to such comprehensive delegation are effective as delegated matters, and have been established by comprehensively taking into account the actual working hours, budgetary circumstances, equity with general public officials in general service, nature of overtime work allowances, and all other general circumstances. As such, the defendant is obliged to pay overtime work allowances in accordance with the specific criteria set forth in the instant guidelines, and there is no obligation to pay overtime work allowances or pay overtime work allowances and holiday

Even if a overtime work allowance should be paid for the part beyond the instant processing guidelines, overtime work hours should be calculated on the basis of actual working hours excluding water surface hours, meal hours, break time, etc., and only the duty to pay overtime work allowances 100 percent, which is the lowest value among the premium rates stipulated in the instant processing guidelines.

4. Determination

A. The defendant's obligation to pay the unpaid excess duty allowance

1) Relevant statutes

As a public official is an employee under Article 2 (1) 1 of the Labor Standards Act that provides labor for the purpose of wages, the Labor Standards Act is, in principle, applied unless it is contrary to its nature. However, as seen earlier, there are special provisions in the Local Public Officials Remuneration Regulations and the Local Public Officials' Allowances, etc. concerning the defendant's obligation to pay the excess service allowance to the plaintiffs, and the scope thereof should be governed by the Local Public Officials' Remuneration Regulations and the Local Public Officials' Allowances, etc. (see Supreme Court Decision 94Da446, Apr. 23, 1996).

2) The meaning of "within the scope of the budget"

Articles 44(4) and 45(1) of the Local Public Officials Act adopt the so-called statutory principle on working conditions for the remuneration of local public officials, and Article 30 of the Local Public Officials Remuneration Regulations based on this provision provides that "public officials may be paid necessary allowances in addition to their salaries within budgetary limits." The former Local Public Officials' Allowances, etc. are separately prescribed by Presidential Decree. The provisions on overtime work allowances, etc. under Article 15 for those who work outside working hours under the order to work order, include overtime work allowances, night work allowances under Article 16 for those who work outside working hours, day-time work allowances under Article 17 for those who work outside working hours, day-time work allowances under Article 17 within budgetary limits, and holidays work allowances under Article 36(1) of the Local Public Officials Act provide that local governments shall calculate expenses within budgetary limits and include them in their budgets in accordance with reasonable standards.

In full view of the provisions of the relevant laws and regulations, the above "budget" scope

The meaning of "within the limit of the actual budget" cannot be interpreted as "within the limit of the actual budget," and it should be interpreted as "in excess of the budget and goal" (the "excess work allowance" is stipulated in the budget). Therefore, if a local public official actually performed overtime work by the order of his/her service and appropriated in the budget item, even though he/she included only the excess work allowance for the hours during which the local government actually worked in excess of the actual working hours in the budget, the local public official can seek payment of the excess work allowance corresponding to the actual working hours (see Supreme Court Decision 2005Da9227, Sept. 10, 2009).

3) Whether the instant guidelines were legalized

The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency on the guidelines for the performance of duties or the standards for the interpretation and application of Acts and subordinate statutes, are generally effective only within the administrative organization and do not have external binding power. However, if the provisions of Acts and subordinate statutes provide for the procedures or methods for the exercise of authority to a specific administrative agency while granting the authority to determine the specific matters of the Acts and subordinate statutes, and thus the delegated administrative agency specifically provides for the matters to be the contents of the relevant Acts and subordinate statutes in the form of administrative rules, such administrative rules have the function to supplement the contents of the statutes in accordance with the validity of the provisions of Acts and subordinate statutes that grant the authority to supplement the specific matters of the statutes, not the general effect of the administrative rules as seen above, but the administrative rules have the same effect as a legal order externally binding (see, e.g., Supreme Court Decision 2006Du3742,3759, Mar. 27, 2008).

Article 15(6) of the former Regulations on Allowances, etc. for Local Public Officials delegates to the head of a local government for the provision of overtime work allowances within the scope determined by the Minister of the Interior and Safety. However, since the right to claim allowances is a consideration for the provision of overtime work, the scope of the right to claim allowances is bound to be determined depending on the amount of provision of labor. If the head of a local government establishes overtime work allowances itself or restricts the scope thereof under the above provision and thereby acquires discretion on remuneration, it is not consistent with the legal principles and system of the working conditions prescribed by the Local Public Officials Act, it is reasonable to deem that Article 15(6) of the above Regulations delegates to the Minister of Public Administration and Security and the head of a local government in order of " procedural matters necessary for the payment criteria and payment method of overtime work allowances" as it is the purport of the language and text. If the Minister of Public Administration and Security and the head of a local government establish administrative

With respect to the instant case, the Minister of Public Administration and Security established the instant processing guidelines pursuant to delegation of Article 15(6) of the said Regulations, in addition to the procedural matters necessary for the criteria and method of payment of excess work allowances, the scope of recognition of overtime work hours in this case is limited within the scope of budget, and the scope of recognition of overtime work hours and holiday work allowances is limited within the scope of budget. This is a content that forms the Plaintiffs’ excessive work hours per se or limits the scope thereof, and thus, it cannot be effective as a legal order as it goes beyond the delegation limit under Article 15(6)

4) Sub-committee

In full view of the aforementioned facts and the purport of the entire oral argument, the plaintiffs, as fire-fighting officers belonging to the defendant, worked in the form of two or three classes, and worked in excess of 192 hours per month average working hours of public officials stipulated in the Local Public Officials Service Regulations, and worked in night or on holidays. The defendant compiled a budget to pay overtime work to alternate workers within 75 hours per month, and accordingly, paid overtime work allowances to the plaintiffs from December 2006 to December 201. In light of these circumstances, the plaintiffs' overtime work allowances were included in the defendant's budget.

Therefore, regardless of the scope of budget compiled in accordance with the aforementioned legal principles, the Defendant is obliged to pay the Plaintiffs excess work allowance equivalent to the remaining amount after deducting the already paid excess work allowance from the reasonable excess work allowance corresponding to the actual overtime work hours.

(b) Calculation of unpaid excess duty allowances;

(i) a computation method;

Comprehensively taking account of the facts acknowledged and the provisions of the relevant Acts and subordinate statutes, the calculation formula is as follows.

○ The excessive working hours for which the overtime duty is unpaid = the total working hours (month)-Working hours under the Regulations on the Uniforms of Local Public Officials - The excessive working hours during which the overtime duty is paid.

○ The actual working hours (monthly) = The working hours per hour + Other overtime working hours (the no-day business trip hours + the non-day emergency mobilization hours).

○ Working Hours (monthly) on the Regulations on the Service of Local Public Officials = Work Hours of the relevant month under the Regulations on the Service of Local Public Officials - Leave Period under the Regulations on the Service of Local Public Officials, Training Period under the Regulations on the Service of Local Public Officials - Outing and outing, and early retirement hours 2) Work Hours

The Defendant asserts that the instant processing guidelines prohibit overtime work hours from paying sick allowances and holiday work hours for the same working hours, so it cannot include the hours of overtime work in calculating overtime work hours.

According to the provisions on the allowance for local public officials, the right to claim the payment of the relevant allowance shall naturally arise during the overtime work and holiday work, and the legal nature of the guidelines for the treatment of this case in which the two parties' rank is restricted cannot be recognized as above. Therefore, this part of the defendant's assertion is without merit.

3) Whether the meal hours are deducted during working hours

The defendant asserts that the plaintiffs can freely rest without being at the time of their work while they do so, so in calculating the hours of excess work for which the plaintiffs' excessive work hours are unpaid, the defendant asserts that the weekly work period should be deducted from three hours a day (one hour a day, a day a day, a day a day a day a day a day, and two hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day is not paid.

Even if a worker’s waiting time, rest, and surface time, etc., which is not actually engaged in work during work hours, is not guaranteed to the worker free use as a recess, but actually under the employer’s direction and supervision, it is reasonable to deem that such time is included in work hours (see, e.g., Supreme Court Decision 2006Da41990, Nov. 23, 2006).

Each statement in Eul 1-5 and Eul 4 alone is insufficient to recognize the fact that the defendant guaranteed the plaintiffs the free use of meal hours, and there is no other evidence to acknowledge it.

Rather, the following circumstances, namely, ① Rules of the National Emergency Management Agency established on March 2, 2010 (Direction 196 of the National Emergency Management Agency, which provides that overtime work shall be performed to maintain a full-time working system regardless of night, Saturdays and holidays in order to effectively cope with fire, disasters and other emergency situations. Here, the term “regular work” means the work to be performed continuously for 24 hours, regardless of night, Saturday and holidays, or the work to be performed at all times to cope with urgent and serious disaster situations; ② The workers on the outside work place are in the form of regular work to be called out regardless of night, Saturday and holidays; ② The workers on the outside work place are equipped with personal equipment to be called out immediately in preparation for moving to the scene; ③ the workers on the outside work place are in the vicinity of the designated place or vehicle distance; ③ The workers on the outside work place shall not be called out within the first and second night hours, ④ The workers on the outside work place shall not be called out of the employer’s first and second night hours, so that they may not get out of their daily service hours.

Therefore, this part of the defendant's argument is without merit.

(iv) the application of the premium rate.

The defendant asserts that the premium rate stated in the instant processing guidelines is also applicable to the plaintiffs, so even if the defendant is liable to pay excess work allowance, it shall be calculated by applying the premium rate.

Article 15(2) of the former Regulations on Allowances, etc. for Local Public Officials provides that the payment of overtime work allowances shall be 15 percent to 15 percent of the standard amount of pay, but if deemed necessary by the head of a local government, it shall be adjusted within the scope of 10 percent to 15 percent. In addition, the above provision also provides that the rate of increase of 10 percent to 15 percent shall be applied to general public pursuant to the handling guidelines of this case established pursuant to the purport of Article 15(2) of the above provision. However, the above handling guidelines of this case provide that the rate of increase of pay to general public officials shall be limited to general public officials, and the application of the premium rate shall not be provided to those who are present workers. In light of the difference between the scope of recognition of overtime work allowances to general public officials and those who are present workers, it is difficult to view that the above provision of this case can be applied or analogically applied to those who are present workers without any legal basis, so the defendant's assertion that the above handling guidelines of this case cannot be applied differently.

5) Calculation of specific excess service allowances payable;

There is no dispute between the parties regarding the plaintiffs' actual total working hours, working hours under the service regulations, the number of days of leave to be excluded from the working hours, etc. under the service regulations, and the unit price of excess allowances (the specific number is stated in the calculation statement of individual overtime work allowance (each X-ray) recorded in the CD as of June 20, 2012 by the plaintiffs' request for modification of the purport of the plaintiffs' claim on June 20, 2012). The results of calculating the principal of the excess work allowance payable to each plaintiff and damages for delay by the end of the end of 2010 are the same as the respective amounts.

The defendant has a duty to pay damages for delay calculated by the ratio of 20% per annum as stipulated in the Civil Act from January 21, 2011 to July 18, 2012, which is clear that it is the delivery date of a copy of the application for modification of the purport of the claim as of July 18, 201, and 5% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, to the day of full payment, to the principal of the unpaid overtime service and the unpaid principal as stated in the separate sheet as stated in the separate sheet.

5. Conclusion

The plaintiffs' claims are justified and accepted in entirety.

Judges Shin Jae-ju

Judges Park Chang-hee