In a case where the Defendant was prosecuted for violating the Labor Standards Act and the Guarantee of Workers' Retirement Benefits Act on the ground that he did not pay wages, retirement allowances, and allowances to workers within 14 days from the date of his retirement by failing to pay the same wages, etc. as that of ordinary labor, as well as wages, etc. to workers who retired from the Defendant Company A, as an employer operating a facility management service business under the trade name of Company A, and was charged with violating the Labor Standards Act and the Guarantee of Workers' Retirement Benefits Act on the grounds that he did not pay workers wages, retirement allowances, and allowances to workers within 14 days from the date of his retirement, the case found the Defendant guilty of the charges only on the grounds that the Defendant did not additionally grant workers a rest time of one hour and 30 days,

The Defendant is an employer who operates a facility management service business under the trade name of Gap corporation, and was prosecuted for violating the Labor Standards Act and the Guarantee of Workers' Retirement Benefits Act, on the ground that he did not pay wages, etc. to two workers who retired from the management business of machinery in Gap corporation for one hour and 30 hours in addition to the occupancy trial hours, and did not pay the same wages, etc. as the ordinary work hours, and did not pay wages, retirement allowances, and allowances to the above workers within 14 days from the date of retirement when the cause for payment occurred without agreement on the extension of payment dates between the parties.

The case holding that the above workers do not receive additional hours of work from the employer's direction and supervision of the worker, and do not receive additional hours of work from the worker's employer for reasons that it is difficult to grant time to the facility manager a lump sum of time hours as stipulated in the original employment contract because it is impossible to do so during the work hours in reality and it is difficult to grant time to the facility manager the said worker an additional time of work, and it is not possible to freely use the worker due to reasons that the worker's main work is not limited to time of work, i.e., hours of work which are set out in the employment contract, i., hours of work from the employer's direction and supervision, and it is not recognized that the above worker's work is waiting in the disaster prevention room every day and there are many strengths of work, and it is not recognized that the work hours are calculated at the minimum wage level from the worker's waiting time to the worker's ordinary time of work, and that the worker's additional hours of work do not differ from the above worker's ordinary hours of work.

Articles 36 and 50(3) of the Labor Standards Act; Article 109(1) of the former Labor Standards Act (Amended by Act No. 15108, Nov. 28, 2017); Articles 9 and 44 subparag. 1 of the Guarantee of Workers’ Retirement Benefits Act

Defendant

Prosecutor

Park Sang-dae et al.

Attorney Lee Han-hoon

Ulsan District Court Decision 2018 Gogi519 decided December 20, 2018

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

The Defendant paid wages, etc. to workers on the ground that he did not grant one hour and thirty-day rest hours to workers, and since the work on duty is the same as that of ordinary workers, the Defendant did not pay the above wages, etc. Even though he paid wages, the Defendant determined that additional recess hours were granted, or that the work on duty of workers is not the same as that of ordinary workers, and thus, the lower court acquitted the Defendant of the facts charged of this case by misapprehending facts and misapprehending legal principles.

2. Ex officio determination

In the trial of the case, the prosecutor filed an application for modification of the indictment with the content of changing the “Attached List of Crimes” from among the facts charged in the case to “attached Table 1 List of Crimes”, and “The amount of money and other valuables 28,388,682 won” to “the amount of money and other valuables 26,60,096 won”, and the judgment of the court below may no longer be maintained as the case is subject to adjudication upon permission by the court. Despite such reasons for ex officio reversal, the prosecutor’s assertion of mistake of facts and misapprehension of legal principles is still subject to adjudication by the

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Summary of the revised facts charged

The Defendant is an employer who operates a facility management service business in Changwon-si ( Address omitted). The Defendant did not pay KRW 26,660,096, respectively, within 14 days from the date of retirement where the cause for the payment occurred, as well as KRW 294,906, which was included in the annual use allowances of Nonindicted Party 2 retired from office as a machine management business, from ○○○○○○○ District Court to April 23, 2015 to April 22, 2016, in the instant place of business, as well as KRW 294,906, which was included in the list of crimes in attached Table 1 (hereinafter “instant workers”).

B. As to whether the Defendant additionally granted to the instant workers a recess of 1 hour and 30 percent of the time of occupation, excluding the time of occupation.

1) The judgment of the court below

The lower court determined that it is insufficient for the prosecutor to prove that the Defendant did not additionally grant a recess of 1 hour and 30 percent of the total hours, excluding the night time to the instant workers, in full view of the following: ① the new building of ○○ District Court, and the construction of new machinery and equipment, ② the employment contract between Nonindicted Co. 1 and the instant workers; ② the hours of recess is stipulated in the employment contract concluded between Nonindicted Co. 1 and the instant workers; ③ the Busan Regional Government Procurement Service emphasizes it from the stage of the order; ③ the labor inspector deemed that it is possible for the instant workers to secure a recess of 1 hour and 30 minutes of rest hours due to the characteristics of the business that has not high intensity as a result of on-site business trip and has high waiting time; ④ the circumstances that the instant workers had been 30 minutes of rest time at the site unlike the entries in the contract; ⑤ the instant workers’ form of work appears to be more continuous than the continuous form of work.

2) Determination of the immediate deliberation

A) Relevant legal principles

Article 50(3) of the Labor Standards Act provides that “The waiting time, etc. under the direction and supervision of an employer shall be deemed working hours for work.”

Work hours refer to the hours for which an employee provides labor under the employer’s direction and supervision. Recess hours refer to the hours for which an employee is free to use, which are set by the employer’s direction and supervision during work hours. Therefore, even if an employee does not actually engage in work during work hours or waiting hours, such hours are not guaranteed free use by the employee, but are actually under the employer’s direction and supervision. It is not uniformly determined depending on the type of specific type of work or work. Such determination ought to be based on an individual case, including the contents of labor contract, rules of employment and collective agreement applicable to the relevant workplace, the details of work provided by the employee, how the employee interferes with or supervises the employee, whether the employee is in a work site, whether the employee is in a work site available, whether there is any other actual rest, or whether there is any circumstance to obstruct the employer’s direction and supervision, and the extent thereof (see, e.g., Supreme Court Decision 2014Da7281, Dec. 5, 2017).

B) Specific determination

(1) According to the evidence duly adopted and examined by the court below and the court below, the following facts can be acknowledged:

① The written employment contract between Nonindicted Co. 1 and the instant workers (2015) includes 32.5 hours per week, recess hours of 10:00 to 10:30, 12:00 to 13:00, 15:00 to 16:00, base rate of 8,895 won/Hr (1), monthly payment of 1,813,300 to 143Hr. The written employment contract between Nonindicted Co. 1 and the instant workers is also the same as the written employment contract for other workers.

② Nonindicted 2’s salary (total income) is KRW 1,813,30 for May 2015, and KRW 1,866,670 for December 2015, and KRW 2,018,960 for January 2016, and KRW 1,853,31 for September 2015, Nonindicted 3’s salary (total income) is KRW 1,880,013 for December 2015, and KRW 2,018,960 for January 2, 2016, and KRW 1,946,60 for February 2016.

③ Nonindicted Co. 1 is aware that there was an omission in weekly paid leave allowances in the employment contract in 2015, and it tried to conclude a contract again with employees in around 2016 to avoid violating the law. During that process, the wage constituent items were changed to KRW 1,946,60,209, and the basic pay was changed to KRW 8,895, and the basic pay was changed to KRW 6,030. The above regular pay constitutes the lowest pay in 2016. However, there was no change in the worker’s work form at all. However, there was no change in the worker’s work form at all on the proposal of Nonindicted Co. 1. However, the other worker did not conclude a contract, but that Nonindicted Co. 1 paid wages, etc. to the instant worker from around 2016.

④ The instant workers maintained and managed the machinery, equipment, and facilities in the office building of the ○○ District Court. When there are problems with machinery and equipment, they visited an external company or directly visited the site for resolution of the problem. The instant workers stated at the lower court’s court as follows: (a) the inspection of water and gas erosion at a level of four to five times per day on the job of ordinary hours; (b) the inspection of water supply and gas leakage; (c) the inspection of air conditioners; (d) the adjustment of water supply and water supply and water supply; and (e) the adjustment of air conditioners.

⑤ Although the hours of the above employment contract include 12:00 to 13:00 during the recess hours, workers were ordinarily employed from 11:30 to 11:30 to 13:00. Workers were mainly in a disaster prevention room where workers have been staying, but there was no separate facility that is able to sleep well. In a usual disaster prevention room, more than 10 employees were located.

(2) According to the above facts, the following facts are acknowledged. In full view of the above facts, it is reasonable to view that the instant workers did not receive the time for free use as set forth in the labor contract, i.e., the hours of recess, other than the time of occupation, which were set forth in the employer’

① The main tasks of the instant workers are the facility management of the ○○ District Court, which performs repeated inspections and patrols every day, and are waiting in the disaster prevention room at ordinary times, and if the said court notifies that the situation, such as the failure, etc., occurred and requests repair, etc., it would be possible to resolve the problem. Therefore, it is anticipated that the said court may request facility management at any time during the business hours. Therefore, it is impossible for the said public officials to grant the facility manager a lump sum recess time during the business hours, and the instant workers of the instant case cannot be granted a recess time out of 10:0:0 to 10:30, 15:00 to 16:00, as stipulated in the labor contract.

② Furthermore, according to the on-site business trip name prepared by Nonindicted 4, Nonindicted 4, the term “work concentrating hours” is indicated as “10:00-10-10-30, 13:30-16:00, 15:00-16:00, which are hours whose duties are concentrated, may not be substantially assigned a recess. Therefore, even if the said hours are not actually engaged in work during the given hours, it is not guaranteed that the instant workers are free to use, but is practically under the employer’s direction and supervision. Furthermore, in cases of 16:0-18:00, which are hours other than the concentration hours of work, the waiting hours are anticipated to have been relatively high, barring any special circumstances, and it is difficult to view that the instant workers were waiting for disaster prevention without actually performing work, beyond the employer’s direction and supervision during the given hours.

③ According to each testimony of Nonindicted 2, 3, and Nonindicted 5 of the witness of the lower court’s witness, most workers were at ordinary time 09:00 and did not have a separate rest time other than the break time until they were retired from 18:00, and the existence of rest time other than the break time of 18:30 is deemed to have not been known ( Nonindicted 6 on the part of Nonindicted Company 1, Co., Ltd., Ltd., was urged to open the break time and rest time (it is difficult to accept the assertion of Nonindicted 6). However, considering the characteristics of the work as seen earlier, it is difficult to take a blanket break time due to the nature of the work, and considering the above testimony, it is difficult to accept the argument of Nonindicted 6). According to the work record, it was actually performed at the request of a public official working at the ○○ District Court at the 10:00~10, 15:00 to 16:00.

④ In addition, it is reasonable to view the disaster prevention room where the instant workers employed as a waiting place was under the direction and supervision of the employer, and it was waiting for the instant workers to have a situation, such as breakdown, etc. while monitoring and going back to the site, as one of the practical working places. It cannot be viewed as a resting place. Although a small wave or a simplified flood is installed, it is difficult to view that there was a free resting place beyond the employer’s direction and supervision in light of the aforementioned working environment and the structure of the disaster prevention room. Moreover, it is difficult to view that there was no other resting place.

(3) It is recognized that the ○○ District Court formed a new building completed on December 2014, and thus the need for repair and repair of machinery and equipment does not exceed the general business establishment. The work of the instant workers is relatively high and there are considerable waiting time. However, it is reasonable to deem that the wages of the employees of Nonindicted Co. 1 were calculated at the minimum wage level as reflected in the labor contract, due to the characteristics of the work, and it is unreasonable to view the waiting time as the waiting time as the waiting time is not reasonable ( Nonindicted Co. 4 prepared a document stating an on-site business trip statement to the effect that the instant workers would have secured the waiting time, even if they could not observe the time specified in the labor contract, and the Defendant might have been able to close one hour and 30 minutes a day at full discretion due to the characteristics of the work of the instant workers, but it is reasonable to view that the waiting time was freely given to the employees, except for the waiting time as seen earlier.

(4) 나아가 피고인은 위와 같은 휴게시간 미부여에 대한 임금, 수당, 퇴직금 등 미지급에 관한 고의가 없었다고 주장하나, ㉠ 매일 점심시간 외 1시간 30분의 휴게시간을 부여하는 것은 통상의 근무형태와는 달라 근로계약 체결에 있어서 중요한 점이라고 할 것임에도 불구하고 피고인이 당초 ◇◇◇에 구인을 할 때나 면접 시 위와 같은 휴게시간에 대한 공지를 하지 않았던 것으로 보이는 점, ㉡ 이 사건 근로자들을 비롯한 공소외 1 주식회사의 근로자들 역시 위와 같은 휴게시간에 대하여 제대로 인지하고 있지 않았고, 실제로 휴게시간을 부여받지도 못한 것으로 보이는 점, ㉢ 피고인이 근로계약서상 휴게시간을 기재하게 된 것은 도급계약상 근로자들에게 점심시간 외 휴게시간을 추가로 부여하게 되어 있었던 이유도 있으나, 최저임금에 해당하는 시급으로 근로자를 구하면서 소정근로시간을 감축하여 그에 대한 임금을 줄이기 위해서였다고 보이는 점(피고인과 변호인은 ○○ 지역의 고임금 사정상 인력의 구인이 어려웠다고 진술한 바 있다), ㉣ 피고인은 이 사건 근로자들에 대하여 근로기준법상 감시·단속적 근로자 승인을 받을 수 있었을 것으로 보임에도 받지 아니하였던 점 등을 종합하면, 위와 같은 근로기준법 위반 및 근로자퇴직급여 보장법 위반의 고의도 인정할 수 있다.

(5) Therefore, the prosecutor’s assertion on this part is with merit.

C. As to whether the work on duty of the instant workers is subject to extension and night work allowances after being assessed as equal to normal work.

1) The judgment of the court below

With respect to whether the work on duty of the instant workers is subject to extension and night work allowances, the lower court determined that: (a) the instant workers stated that the work on night basis constitutes an average of four to five times per day on the work on night basis, including inspection of water and gas, inspection of air conditioners, coordination of three-round water conditioners, air conditioners, etc.; (b) the workers did not take charge of the said work on night basis; (c) the workers are in charge of patrol, boiler and operation of various facilities; (c) the workers are deemed to have been in charge of ordinary work hours from 22:00 to 05:30; and (d) the workers were able to sleep or rest in the work on night; (c) the employees were unable to prove that there was an additional duty on night work allowance between the employees and the instant work on night work allowance paid to the instant employees and the monthly work allowance paid to the instant employees on condition that there was a lack of reasonable amount of payment on overtime and night work allowance to be paid on the basis of the average monthly work allowance paid to the instant workers.

2) Determination of the immediate deliberation

In addition to the following circumstances, examining the reasoning of the judgment below in close comparison with the records of trial, the judgment of the court below is just, and there is no error of misconception of facts or misapprehension of the legal principles, such as the grounds for appeal by the prosecutor. Therefore, this part of the prosecutor

① As seen earlier, the main duties of the instant workers are the facility management of the ○○ District Court and perform repeated inspections and patrols every day. In ordinary times, the said workers waiting in the disaster prevention room. The said court notified that the situation, such as the failure, etc., occurred and requests repair, etc., and the said workers request repair, etc. to solve the problem. While on duty, there are no public officials working in the ○○ District Court, the instant workers did not perform the said duties

② Unlike ordinary times, the employer did not have any direction or supervision, and it seems that only the inspection and patrol of court facilities was performed as above.

D. Sub-determination

Therefore, the prosecutor's assertion that the Defendant did not pay wages to the instant workers for the recess hours due to the failure to additionally grant one hour and thirty-day recess hours, excluding the night hours to the instant workers, and that the difference of retirement allowances due to additional working hours was unpaid. However, the prosecutor's argument that the Defendant’s duty of the instant workers was not paid for the extension of hours, night work hours, and holiday work allowances due to additional working hours, is without merit.

4. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment of the court below is reversed and it is again decided as follows.

The defendant is a business operator who employs approximately five hundred workers at the Changwon city ( Address omitted) and operates a facility management service business, and is an employer.

When a worker dies or retires, the employer shall pay the wages, compensations, and other money or valuables within fourteen days after the cause for such payment occurred: Provided, That the period may, under special circumstances, be extended by mutual agreement between the parties concerned.

Nevertheless, the Defendant, at the ○○○ District Court located in ○○○○○○○○○○○○○○○○ Party, which contracted for facility management services at the said place of business, did not pay KRW 5,39,319,00 in total, within 14 days from the date on which the cause for payment occurred without an agreement on the extension of the due date between the parties to the payment, as shown in the separate sheet 20,829,92, and Nonindicted 2’s retirement allowances, including KRW 4,829,92, and KRW 5,39,319,00,000,000 from April 23, 2015 to April 22, 2016.

1. Partial statement of the defendant;

1. The witness Nonindicted 2 and Nonindicted 3’s each legal statement in the original trial and the witness’s legal statement in the trial of Nonindicted 5

1. Each police statement about Nonindicted 6

1. Results of on-site inspections by this court;

1. Each complaint;

1. Each detailed statement of wages in arrears, calculation details of wages in arrears, each investigation data calculation report, each report on the acceptance of data on an investigation, work schedule, each labor contract, each labor contract, November 2014, the detailed statement of salary in December (other workers, Nonindicted 7, and Nonindicted 8) ○○ District Court facility management service contract (other workers, Nonindicted 7, and Nonindicted 8), documents related to the payment of money and valuables related to the work on duty, the wage ledger, etc. on November 2014, copies of the rules of employment, 2014, 2016, copies of the civil petition documents processing prior to the processing of the civil petition documents, copies of the petition documents, proxy statement (16.28, April 16, 15, 16), Nonindicted 10-4, the statement of payment of retirement allowances in arrears, the statement of proxy statement, the statement of fact that Non-Indicted 6 documents related to the request for submission of documents related to telephone call-related documents and documents related to the investigation report, the statement related to request related to the employer.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 109(1) and 36 of the former Labor Standards Act (Amended by Act No. 15108, Nov. 28, 2017); Article 44 Subparag. 1, and Article 9 of the Guarantee of Workers' Retirement Benefits Act (which is not paid as retirement allowances)

1. Commercial competition;

Articles 40 and 50 (Offences of the Labor Standards Act due to Non-Party 2’s Failure to pay retirement allowances, and the violation of the Guarantee of Workers’ Retirement Benefits Act, and the punishment imposed on a violation of the Labor Standards Act with heavier nature) of each Criminal Act

1. Selection of punishment;

Selection of each fine

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Labor Standards Act on Non-Indicted 2 with a heavier penalty]

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of applicable sentences under law: Fines of 50,000 to 30 million won;

2. Determination of sentence (not less than 6 weeks);

In light of the legislative intent of the Labor Standards Act and the Guarantee of Workers' Retirement Benefits Act to ensure the basic livelihood of workers in arrears with the amount of delayed payment of wages and retirement allowances in this case, the fact that there is no criminal conviction against the Defendant, the fact that there is a reason for somewhat considering the circumstance and motive leading up to the crime in this case, the circumstances leading up to the crime in this case, the age and character and behavior of the Defendant, the circumstances leading up to the crime in this case, the circumstances leading up to the crime, the character and conduct of the Defendant, and the circumstances leading to the sentencing as shown in the arguments,

The summary of the charges on the violation of the Labor Standards Act and the Act on Guarantee of Workers' Retirement Benefits due to the failure to pay retirement allowances, annual use allowances, holiday allowances, and violations of the Guarantee of Workers' Retirement Benefits, even though the work on duty of the instant workers is evaluated as equal to normal work, and is subject to extension and night work allowances. The summary of the charges on the violation of the Labor Standards Act and the violation of the Guarantee of Workers' Retirement Benefits Act is “the Defendant is an employer of the facility management service at the ( Address omitted) in the original city. The Defendant is not guilty of the violation of the Act on the Guarantee of Workers’ Retirement Benefits as stated in the judgment of the lower court, on April 23, 2015 through April 22, 2016, which entered into a contract for the facility management service at the ○○○○ ○○ △△ District Court, which entered into a contract with the said workplace on the facility management service, as well as KRW 854,050,050, which was unpaid retirement allowance for the retired workers, as stated in the attached 3 crime.”

[Attachment] Crime List: Omitted

[Attachment 1] Crime List: omitted

[Attachment 2] Unpaid Wages for Work: omitted

[Attachment 3] Crime List: omitted

Judges Kim Jong-gu (Presiding Judge) Kim Jong-sung

(1) In the initial indictment, the amount of unpaid wages, etc. is calculated based on KRW 11,342.55 as usual letter of indictment. However, according to the changed indictment in the trial, according to the purport of the lower judgment, it seems reasonable to calculate the basic hourly wage as KRW 8,895 (the amount in the labor contract in 2015), and there is no dispute among the Defendant.

2) Although the Defendant subsequently paid the instant workers annual rent allowance, there seems to be no dispute over the fact that the instant workers did not pay the annual rent allowance within 14 days from the date of retirement where the cause for payment occurred without agreement on the extension of the payment due date between the parties.

3) Basic hourly pay 8,895 】 6.5 】 4 days (which is deemed that daily working hours are eight hours due to non-assignment of recess hours, but is calculated on the basis of 6.5 hours per day on the indictment, and the annual amount of 11,342.5 hours per day on the indictment. For the reasons as seen earlier, the daily working hours shall be calculated based on 6.5 hours per day within the scope of indictment for KRW 8,895, which is basic in the labor contract in 2015).

Note 4) Basic hourly pay 8,895 】 6.5 】 1 day (calculated on the basis of basic hourly pay 8,895 won and 6.5 hours for the same reasons as the preceding week 3).

5) Unpaid hours work allowance (the last three months before retirement) shall be deemed to be KRW 65,851 for nine days from January 23, 2016 to January 31, 2016 [the amount equivalent to five days of actual work shall be deemed to be KRW 66,713 (basic pay 8,895 x 1.5 hours x 5 days) but the amount indicated in the indictment shall be deemed to be the above amount, and it shall be recognized as the above amount] 20,138 (15 days of actual work), 226,823 (17 days of actual work), 26,263 (17 days of actual work), 26 days from April 1, 2016 to 31, 2016, the total amount of KRW 3636 days shall be multiplied by the average wage of KRW 25,2636 days and the total amount of KRW 2636 days shall be multiplied by the average wage of KRW 253636 days (36 days of actual work).

Since a fine is imposed, there is no application of sentencing criteria.