[1] Standard for determining whether break time or waiting time stipulated in a labor contract belongs to work hours or recess hours

[2] In a case where: (a) the time waiting for bus drivers Eul et al., who are employed by Gap et al. operating passenger transport business, constitutes working hours after completing bus operation; and (b) the time waiting for them to operate after running the bus, the case holding that the lower court erred by misapprehending the legal doctrine on whether the waiting time constitutes working hours solely on the ground that the waiting time, such as Eul et al., includes working hours, should be deemed to include working hours in light of all circumstances; and (c)

[1] 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 can freely use, which are set by the employer’s direction and supervision during work hours. Therefore, even if an employee does not actually engage in his/her work during work hours or waiting hours, the hours under the employer’s direction and supervision are not guaranteed free use of the employee, and are actually included in work hours. Whether the break hours or waiting hours under a labor contract belong to work hours or fall under work hours, it is not uniformly determined depending on the type of specific type of business or work. Such determination ought to be made in full view of the contents of labor contract, the rules of employment and collective agreement applicable to the relevant work place, the details of work provided by the employee, whether the employee interferes with or supervises the employee, whether the employee is in a work place, whether there is any other actual break, or whether there is any circumstance to recognize the employer’s direction and supervision, etc.

[2] In a case where the issue arises as to whether Gap company Gap et al. waiting for bus drivers belonging to Gap company, etc. operating passenger transport business constitutes work hours after completing bus operation, and then waiting for them, the case holding that the court below erred by misapprehending the legal principles on the fact that Gap company et al. and Eul company et al. did not freely include work hours in waiting for bus drivers in light of the fact that Gap company et al. concluded a wage agreement with Gap company, etc., and Gap company et al. agreed to work hours as 9 hours, adding 1 hours a day to 8 hours in basic work hours; it appears that Gap company et al. can be seen as working hours in waiting for more than 1 hours already reflected in work hours through the wage agreement during waiting hours; and that there was no evidence to view that Gap company et al. did not freely direct or supervise Eul company et al.'s work hours when waiting for bus drivers.

[1] Articles 50 and 54 of the Labor Standards Act / [2] Articles 50 and 54 of the Labor Standards Act

[1] Supreme Court Decision 2014Da74254 Decided December 5, 2017 (Gong2018Sang, 30)

Plaintiff 1 and four others (Attorney Kang Ho-ho, Counsel for the plaintiff-appellant)

Hean Transportation Co., Ltd. and one other (Defendant Law Firm Chungcheong, Attorneys Lee Hy-sik et al., Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2012Na2390 decided February 22, 2013

The judgment below is reversed, and the case is remanded to the Seoul Northern District Court.

The grounds of appeal are examined.

1. Article 50(1) and (2) of the Labor Standards Act provides that working hours per week shall not exceed 40 hours, excluding recess hours, and working hours per day shall not exceed eight hours, excluding recess hours. In calculating working hours pursuant to Article 50(3) of the same Act, waiting hours, etc. under the direction and supervision of an employer shall be deemed to be working hours.

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, as 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, the hours for which the employee is actually under the employer’s direction and supervision, are not guaranteed free use of the work hours, and are actually included in work hours. It is not uniformly determined depending on the contents of labor contract or rules of employment and collective agreement applicable to the relevant workplace, the details of work provided by the relevant employee, how the employee interferes with or supervises the relevant workplace, whether the employee is in a work site, and whether there are other circumstances to recognize the employer’s direction and supervision (see Supreme Court Decision 201Da74254, Dec. 5, 2017). Such determination ought to be made in detail based on individual cases, comprehensively taking into account various circumstances, such as the contents of labor contract or the relevant workplace, the details of work provided by the employee, whether the employee interferes with or supervises the employee, and degree thereof, etc.

2. Examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, it shall be deemed that the time when the Plaintiffs waiting after the completion of bus operation and the next operation of the bus (hereinafter “instant waiting time”) included hours that do not constitute working hours, and thus, the entire waiting time of the instant case cannot be deemed as working hours.

① When entering into a wage agreement, Seoul Metropolitan Government Bus Transport Business Association to which the Defendants are affiliated and the National Automobile Trade Union Federation to which the Plaintiffs are affiliated agreed on the daily working hours of 8 hours per day plus 1 hours per day overtime. This seems to have taken into account the fact that the daily average bus operation hours of 8 hours per day, in addition to 8 hours per day, may constitute working hours.

② The Plaintiffs asserted that the entire waiting time of this case constitutes working hours since they performed cleaning, vehicle inspection, and inspection outside of meal and rest during the waiting time of this case. However, there is no evidence to deem that the Plaintiffs conducted cleaning, vehicle inspection, and inspection beyond one hour already reflected in working hours through the wage agreement during the waiting time of this case.

③ There is no evidence to support the Defendants’ specific direction and supervision of the Plaintiffs during the waiting time of the instant case, such as ordering the Plaintiffs to perform their duties, and there is no provision to deem that labor contracts, rules of employment, collective agreements, etc. also affect the Defendants’ right to direct and supervise the waiting time of the instant case. Rather, the wage agreement and the rules of employment of the Defendants stipulate that workers may freely use the waiting time of the instant case as recess hours.

④ Unless there are exceptional cases where bus operation needs to be delayed due to road conditions, etc., it seems that the Defendants did not have any substantial business need to interfere with or supervise the use of waiting time by bus drivers belonging to the Defendants.

⑤ Although the waiting time of the instant case was somewhat insufficient, the bus drivers did not appear to have any difficulty using the bus drivers as time for rest, since the departure time of the following bus was set in the bus list. In fact, bus drivers belonging to the Defendants appear to have freely used most of waiting time, such as taking rest in a resting room or providing meals, and they were going out to view personal usage.

3. Nevertheless, the lower court deemed that the entire waiting time of the instant case constituted working hours and calculated the Plaintiffs’ excessive working hours solely based on the circumstances indicated in its reasoning, including that the waiting time of the Plaintiffs was not specified. In so determining, the lower court erred by misapprehending the legal doctrine regarding working hours, or by exceeding the bounds of the principle of free evaluation of evidence in violation

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)