[1] In a case where the Minister of Labor has obtained the approval of a supervisor or enforcement worker under Article 49 subparagraph 3 of the former Labor Standards Act, whether the worker is obligated to pay overtime and holiday work allowances (negative)

[2] Whether an application for authorization under the above [1] requires the consent of a trade union or worker (negative)

[3] The case holding that the application of the Labor Standards Act and the Rules of Employment on Work Hours and Holidays is all excluded in light of the fact that the security worker of the Korea Highway constitutes surveillance workers in light of the nature of the business and the above [1] has the approval

[1] In a case where the approval of the Minister of Labor under Article 49 subparag. 3 of the former Labor Standards Act (amended by Act No. 4099 of Mar. 29, 1989) is obtained for surveillance or intermittent workers, the provisions on work hours, recess and holiday as stipulated in Articles 4 and 5 of the same Act are not applicable, and in principle, the employer is not obliged to pay the worker overtime allowance and holiday allowance.

[2] In light of the nature of the work, it constitutes surveillance and control workers, and upon the approval of the Minister of Labor under Article 49 subparagraph 3 of the former Labor Standards Act (amended by Act No. 4099 of March 29, 1989), the provisions on working hours, recess and holidays under Chapters IV and V of the same Act are not applicable. The application for the approval of exclusion from the application does not require the consent of a trade union or worker.

[3] The case holding that the application of the Labor Standards Act and the Employment Rules for overtime work and holiday work shall be all excluded in light of the fact that security workers of the Korea Highway, who worked on a daily basis, constitute surveillance workers by nature of their duties, was authorized by the Minister of Labor under Article 49 subparagraph 3 of the former Labor Standards Act (amended by Act No. 4099 of March 29, 1989), and that the rules of employment divide them into special workers who work on a three-day basis or one-day basis and other ordinary workers

[1] Articles 42(1), 46, and 49 subparag. 3 (see Articles 42(1), 46, and 49 subparag. 3) of the former Labor Standards Act (amended by Act No. 4099, Mar. 29, 1989) / [2] Article 49 subparag. 3 (see Article 49 subparag. 3 of the current Labor Standards Act) of the former Labor Standards Act / [3] Article 49 subparag. 3 (see Article 49 subparag. 3 of the current Labor Standards Act) of the former Labor Standards Act

[1] [2] [3] Supreme Court Decision 95Da36695 delivered on November 22, 1996 (the same purport) / [1] Supreme Court Decision 92Da46462 delivered on July 27, 1993 (Gong1993Ha, 2389) Supreme Court Decision 93Da46254 delivered on January 12, 1995 (Gong195Sang, 880) Supreme Court Decision 95Da40908 delivered on December 10, 1996 (the same purport)

Plaintiff

Korea Highway Corporation

Seoul High Court Decision 95Na4461 delivered on June 4, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In light of the records, the Plaintiff was working for the Defendant Corporation on March 15, 197 as an employee in general service and on December 31, 191; the Defendant Corporation was newly established on December 173; the security worker was working for 24 hours a day; the Plaintiff also was employed for 24 hours a day, and the amount borne by the Defendant Company for 24 hours a day thereafter to 09:0 hours a day thereafter; the Plaintiff was working for 9 hours a day off to 24 hours a day thereafter; the Plaintiff was working for 9 hours a day off to 24 hours a day thereafter; the Plaintiff was working for 19 hours a day off to 9 hours a day; the Plaintiff was working for 24 hours a day off to 19:0 hours a day; the Plaintiff was working for 19 hours a day off to 10 hours a day off; the Plaintiff’s average hours off to 19 hours a day off and off to 24 hours a day off a day, according to the rules of employment for the Defendant Corporation.

On the other hand, the plaintiff entered into an employment contract on a 24-day basis between the defendant Corporation and the Corporation at the time of entry. The plaintiff's duties such as regular patrol on expressway, traffic accident handling, imposition and collection of traffic accident-related charges and accident record cards, provision of convenience to vehicle vehicles, and escort of restricted vehicles are in the original duties of surveillance in light of the contents of his duties, and they fall under surveillance work with less physical or mental tension. Thus, where the Minister of Labor obtains the approval of the Minister of Labor under subparagraph 3 of Article 49 of the Labor Act excluding the application of the provision on the working hours, etc. under the Labor Standards Act, the provision on the working hours, holidays, and recess as stipulated in Chapters 4 and 5 of the Labor Standards Act does not apply, and since the rules on the employment of the defendant Corporation divide the working hours of the employees into three-day or one-day worker and other ordinary workers, the plaintiff's request for overtime work hours and holiday work hours under the Rules of Employment No. 14 of the Labor Standards Act does not apply to the plaintiff and the Rules No. 14.

In addition, it is a monitoring and control employee due to the nature of the work, and the approval of the Minister of Labor under Article 49 subparagraph 3 of the Labor Standards Act (the approval of the Labor Relations Commission under the current Labor Standards Act) is obtained, and the application of the provisions on working hours, holidays, and recess in Chapters IV and V of the same Act is not subject to the application for the approval of exemption from application, as alleged in the theory of lawsuit.

In addition, unless the provisions on work hours, holidays, and holidays in Chapters IV and V of the Labor Standards Act are applied, in principle, an employer does not have a duty to pay overtime and holiday allowances to an employee, and in such a case, the wage agreement between the employer and the employee cannot be deemed as an inclusive wage system including the above-mentioned allowances on the basic wages, but the same applies that the employee is not entitled to claim a separate overtime and holiday allowance against the employer.

Therefore, the conclusion that the court below rejected the plaintiff's remaining claim for overtime work allowance and holiday work allowance is correct, and there is no error of law such as incomplete deliberation, misunderstanding of facts, or misunderstanding of legal principles which affected the judgment

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)