[1] Whether holiday work paid on holiday work under Article 56 of the former Labor Standards Act includes work on holiday work as prescribed on holiday work under the collective agreement or rules of employment (affirmative), and the standard for determining whether holiday work was determined on holiday work

[2] The case holding that in a case where Gap corporation, which is engaged in passenger transport business, provided that "the number of monthly working days shall be 22 full hours (20 days in February), and where the number of monthly working days exceeds 22 days," under the wage calculation table, "Holiday allowances" shall be paid in cases where the number of monthly working days exceeds 26 days (24 days in February), and as prescribed in the wage calculation table separately from weekly working hours, Gap corporation paid "Holiday allowances" to Eul, who is an employee of its company, etc., for more than 26 days (24 days in February), and Eul et al. sought against Gap corporation all overtime working days, the case holding that Gap company's work place should not be accepted since it is reasonable to accept Gap company's claim for holiday allowances for more than 26 days of monthly working days (26 days in February 24, 200) out of the number of monthly working days exceeding 26 days.

[1] Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018) includes not only weekly holiday work prescribed in Article 55 of the same Act, but also the work on the day determined by a collective agreement or employment rules, etc. as a holiday work, as well as the weekly holiday work prescribed in Article 55 of the same Act. Moreover, whether a holiday is determined shall be determined by comprehensively taking into account the language and text of the provisions related to holiday work under a collective agreement or employment rules, as well as the background leading up to such provisions, the regulatory system and practices regarding working hours in the same industry as the pertinent workplace, the name and amount of wages actually paid, the method of calculating the amount of wages paid, etc.

[2] The case holding that in a case where Gap corporation, which is engaged in passenger transport business, provided that "the number of monthly working days shall be 22 full hours (20 days in February), and where the number of monthly working days exceeds 22 days," under the wage calculation table, "Holiday allowances" shall be paid in cases where the number of monthly working days exceeds 26 days (24 days in February), and as prescribed in the wage calculation table separately from weekly working hours, Gap corporation paid "Holiday allowances" to Eul, who is an employee of its company, etc. for more than 26 days (24 days in February), and Eul et al. sought against Gap corporation all holiday allowances for more than 26 days in total, the case holding that Gap company's work days exceeding 26 days in excess of 10 days in excess of 26 days in excess of 24 days in excess of 26 days in excess of 26 days in the wage calculation table, it is reasonable to accept Gap company's claim for holiday allowances, etc.

[1] Articles 55 and 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018) / [2] Articles 55 and 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018)

[1] Supreme Court Decision 90Da14089 Decided May 14, 1991 (Gong1991, 1617) Supreme Court Decision 2016Da9704, 9711 Decided August 14, 2019 (Gong2019Ha, 1713)

Plaintiff 1 and 15 others (Law Firm Oup, Attorney Kang Ho-ho et al., Counsel for the plaintiff-appellant)

Dong Transportation Corporation

Daejeon District Court Decision 2013Na19241 Decided June 3, 2014

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Determination on the grounds of appeal by Plaintiffs 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15, and 16

A. The issue of whether a holiday is fixed shall be determined by comprehensively taking into account the language and text of the provisions related to holiday work in a collective agreement or rules of employment, the background leading up to such provisions, the regulatory system and practices regarding working hours in the same industry as the relevant workplace, the name and amount of wages actually paid, the method of calculating the amount of payment, etc., as well as the weekly paid holiday work under Article 55 of the former Labor Standards Act (see Supreme Court Decision 90Da14089, May 14, 1991). The determination of whether a holiday is fixed ought to be made by comprehensively taking into account the following: (a) the weekly paid holiday work under Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018; 2016Da90711, Aug. 14, 2019).

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

1) Article 2 (4) of the Wage Agreement concluded on June 30, 201 by the Daejeon Metropolitan City Regional Bus Workers’ Union and the Daejeon Metropolitan City Bus Transport Business Association representing the Defendant (hereinafter “instant wage agreement”) provides that “The number of monthly working days shall be 22 full-time days (20 days for February),” and Article 6 (Extension, Night, and Holiday Allowance)(1) provides that “The allowances shall be paid 50/100 by applying the ordinary wages under Article 5 of the wage agreement, and if a worker continues to work on the day before the morning until the P.M., the number of working days shall be calculated as 2 days, and if the number of monthly working days exceeds 22 days, it shall be paid in accordance with the wage calculation schedule.”

2) According to the wage calculation table attached to the wage agreement of this case (hereinafter “the wage calculation table of this case”), where the number of working days per month exceeds the full number of workers is between 23 and 26 days (21 and 24 February), an extended allowance is paid for every nine hours calculated by adding 50% of the Si’s rate to 50% of the Si’s rate per day. On the other hand, where the number of working days per month exceeds 26 days (24 days in February), where the number of working days per month exceeds 26 days (24 days in February), an “basic wage” corresponding to 8 hours per hour per day, an “extension allowance” equivalent to 50% of the Si’s rate, and a “Holiday allowance” equivalent to 50% of the Si’s rate, respectively.

3) The Plaintiffs and the Defendant set the day per week as the weekly holiday, and the Plaintiffs did not work on the said weekly holiday. The Defendant, separately from the weekly holiday allowance, paid to the Plaintiffs the “Holiday allowance” equivalent to 50% of the basic salary of eight hours per day only for the day exceeding 26 days of work among the overtime work days (24 days in February) as set out in the wage calculation schedule of this case.

C. The lower court determined that the Plaintiffs’ claim for holiday work allowance cannot be accepted on the basis of the following circumstances on the premise of the aforementioned facts.

1) Since the wage calculation table of this case constitutes part of the wage agreement of this case by agreement between the parties, it is effective as part of the wage agreement of this case.

2) It cannot be deemed that all the working days after the full attendance constitute holidays on which holiday allowances shall be paid.

3) Therefore, it cannot be deemed that the wage calculation table in this case, which provides that holiday work allowances shall be paid only when working in excess of 26 days in the case of the remaining months except for two months, and 24 days in the case of February, violates Article 56 of the former Labor Standards Act.

D. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court partially erred in its judgment, but it is reasonable to view that the Defendant’s workplace stipulated that the hours exceeding 26 days of monthly work hours (24 days in February) during the hours of overtime work in the Defendant’s workplace are “days”. Therefore, the lower court’s rejection of the Plaintiffs’ claim seeking payment of holiday work allowances for all overtime work hours is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

2. As to the appeal by Plaintiffs 1, 10, and 14

The above plaintiffs did not state the grounds of appeal in the petition of appeal, and did not submit the appellate brief within the submission period.

3. Conclusion

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

Justices Jo Hee-de (Presiding Justice)