[2] In a case where Gap corporation's facility team or electricity team Gap corporation's employee Eul, etc., who was employed in the facility team or electricity team and retired employee Eul et al, sought an extension of watchkeeping duty and night duty allowance, etc. against Gap company, the case holding that the judgment below erred by misapprehending legal principles, in light of all circumstances, such as the fact that the duty performed by workers on duty is always carried out by Gap company's employees, etc. during weekly work hours, it is highly probable that the duty performed by workers on duty such as Eul et al. is the same as that of ordinary duty in terms of its contents and quality

1. In a case where the contents of the work performed at night or in day are extended, or where the contents and quality of the work performed at night are the same as that of ordinary work, in a case where the work performed at night and in day are assessed as in comparison with regular patrols, acceptance of telephone and documents, or other emergency situations, it shall pay night, extended, or holiday work allowances, etc. (see Supreme Court Decision 93Da46254 delivered on January 20, 1995, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Defendant is a company that performs facility management duties, such as inspection, operation, maintenance, and repair of the facilities of “○○○○○○○,” which is composed of about 500 households, two Dongs of 500 households, and a sports center, etc., and the Plaintiff (Appointed Party; hereinafter “Plaintiff”) and the designated parties are workers who retired while serving in the Defendant’s facility team or electric team.

B. Of the employees belonging to the Defendant, the electric team engaged in the inspection, maintenance, and repair of the electric facilities, such as the display of the ○○○○○○○○○○○○○ electric field, electric voltages, electric current monitoring, stability devices, replacement or maintenance of studs, cable work, safety inspection, patrol, etc., and the equipment team engaged in the inspection, maintenance, and repair of the equipment facilities, such as piping repair, terminal replacement, and melting. However, the construction work or repair of the scale difficult for the Defendant to resolve is in charge of the outside company. In addition, the Defendant had an employee in charge of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ employees

C. The Defendant had the employees of the equipment and the electricity team, who are not the employees in charge of the service, serve in the order of four major positions, namely, weekly work, weekly work, weekly work and watchkeeping work, and the watch keeping service had four general employees (one person for the appointment of an electric team, one person for the post-election, one person for the appointment of a facility team, and one person for the post-election).

D. At the time of weekly work from 08:00 to 17:00, the Defendant allocated duties to the employees of facilities or electricity team who are not workers on duty to handle each day at the time of their attendance. The workers on duty confirmed the meters showing the status of operation of facilities and equipment at the disaster prevention office or central surveillance office, and had them process various affairs related to electrical and equipment upon the request of occupants, etc.

E. In addition, from 17:00 to 08:00 of the following day, the Defendant had workers on duty additionally perform duties, such as confirmation of the meter board, receipt and handling of request for the petter service, and inspection and replacement of electric lights in male, female, and female, and electric records and night patrol in the machine room, in addition to the duties of checking the meter board, receipt and handling of request for the petter service.

F. The work of the facility team that operates valves at each stage by washing the calendars and Greens of South and North Korea, and the equipment team that operates the valves at each stage is capable of completing approximately 30 to 1 hour. This work and the work of checking and replacing the records of South and North Korea Syna, etc. can be conducted after 22:00 of the business of the Syna, which ends.

G. A worker on duty prepared a situation record and a management log (hereinafter referred to as “regular work log”) and recorded the work performed on that day. When comparing the work performance details recorded in the reception log and the work performance details recorded in the work log, all of the work performed by the workers on duty did not enter them in the work log (see, e.g., Supreme Court Decision 2006Da15016, Apr. 2, 2011; Supreme Court Decision 2006Da1148, Apr. 2, 2011; Supreme Court Decision 2006Da111

H. From April 4, 2011 to April 15, 2011, comparing the number of requests for offline services on a daily basis, such as the number of requests for offline services on a daily basis, the number of requests for offline services during the same period as the number of requests for offline services entered in the ledger of receipt of offline services, the number of requests for offline services during the night hours is reasonable and the difference is not significant. Furthermore, the number of requests for on Saturdays and Sundays that only workers on duty are expected to have worked is more than the number of requests for on a daily basis.

(i) After the on-site manager retired at around 18:00, it is deemed that there was no person responsible for the direction and supervision of workers on duty, but the on-duty report was made at around 21:00 and around 06:00.

3. Examining the following circumstances revealed in the above facts in light of the legal principles as seen earlier, it is highly probable to view that the remaining hours of work except meals or water surface hours of the Plaintiff and the designated persons on duty are the same as that of ordinary work in terms of their content and quality.

A. The business of checking meters at the disaster prevention room or central surveillance room, receiving and processing a request for peting service, and patroling and checking the mechanical room and the electrical room is always carried out by the Defendant’s workers on duty or employees in exclusive charge of petter service during the weekly working hours. In addition, these business are considerably related to the business of inspecting, maintaining, and repairing the electric power or facilities of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

B. The duties of checking and replacing the dynamics and green houses in South and North Korea, and the duties of checking and replacing the electric power lights in South and North Korea, are necessary for inspecting, maintaining and repairing the electric and equipment facilities of ○○○○○○○○○○○○○○○○○○○○○○○○○○○, and the fact that the operation of the gynasium ought to be conducted after the completion of the operation of the gynasium does not

C. Although the request for a package service that is received during the hours of watchkeeping is somewhat smaller than the request received during the daytime, in light of the fact that employees in exclusive charge of a package service and workers on duty were engaged in a package service during the daytime, it is difficult to view that the intensity of a package service handling during the hours of watchkeeping service is less than that of the daytime.

D. In addition, the duty to confirm the meter board in the disaster prevention office or the central surveillance office is deemed to be the duty that must be continued without interruption, and the station duties and greens work in the private house room requires an amount of 30 to 1 hour. In full view of the fact that at night patrol, in principle, the defendant himself/herself recognized that at night patrol two employees are in need of 30 to 30 minutes, it is difficult to view that the rest of the duty is guaranteed to the plaintiff or the designated person during the hours of the rest of the duty except for meal or sleep hours.

E. It is difficult to deem that such watchkeeping is completely deviating from the direction and supervision of the employer, as the Plaintiff and the designated parties form part of the work on duty set by the Defendant, and the work on duty takes two times at the time of the work on duty.

4. Nevertheless, the court below determined that the whole of the plaintiff and the designated parties on duty could not be evaluated as the same as that of ordinary work. In so doing, the court below erred by misapprehending the legal principles on the determination of on duty and ordinary work, and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Noh Jeong-hee (Presiding Justice)