[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 in a collective agreement, employment rules, etc. (affirmative), and the standard for determining whether holiday work is determined on holiday work

[2] The case holding that, in a case where a collective agreement, etc. applicable to Eul, who is engaged in urban bus transportation business, provides that "two hours per day, 40 hours per week work, five hours per week work per week, five hours per week work per week, day work per week, one day work per week, and one day per week," and Eul operated an urban bus three times a day on the "long work day" basis of Gap company's allocation, and accordingly, Gap paid overtime allowances equivalent to 150% per day on the basis of ten hours per day work, and Eul sought holiday allowances for more than 10 hours per day, the case holding that, in a collective agreement, etc., the "long work day" was not set as holidays, and there is no separate practice as to this, and that overtime allowances are not set as "long work day" due to Gap company's allocation of overtime allowances and its name, 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) Supreme Court Decision 2014Da41520 Decided January 16, 2020 (Gong2020Sang, 414)

Plaintiff

Co., Ltd.

Seoul Western District Court Decision 2015Na37959 decided May 27, 2016

The part of the lower judgment against the Defendant regarding the claim for premium pay for holiday work is reversed, and that part of the case is remanded to the Seoul Western District Court. The remaining grounds of appeal are dismissed.

The grounds of appeal are examined.

1. Whether the calculation of excess working hours is feasible (ground of appeal Nos. 2 and 3)

The lower court acknowledged the time stated in the column for overtime work hours in the annexed Table 2 of the lower judgment as the Plaintiff’s excessive work hours on the premise that the Plaintiff’s waiting time after completing bus operation and the waiting time and finishing time for bus driving constituted work hours following the following operation.

Of the grounds of appeal, the argument disputing the lower judgment’s finding of facts, which is the basis of the lower judgment, is practically disputing the selection of evidence and the determination of the value of evidence belonging to the free evaluation of the lower court. While examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding working hours, or by exceeding the bounds of

2. Whether the duty to pay premium for holiday work exists (ground of appeal No. 1)

A. Pursuant to Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018; hereinafter “former Labor Standards Act”), holiday work paid in addition to 50/100 of ordinary wages as holiday work allowances shall include not only weekly work prescribed under Article 55 of the former Labor Standards Act, but also weekly work determined as holiday work in a collective agreement, employment rules, etc. (see Supreme Court Decision 90Da14089, May 14, 1991). The seal affixed on holiday shall be determined by comprehensively taking into account the language and text of the provisions related to holiday work in a collective agreement or employment rules, and the background leading up to such provisions, the regulatory system and customs on working hours in the same industry as the relevant workplace, the name and amount of wages actually paid, the method of calculating payment amount, etc. (see Supreme Court Decision 2016Da97011, Aug. 14, 2019).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) From February 1, 2010 to January 31, 2014, the Defendant paid wages to drivers under his/her jurisdiction pursuant to the collective agreement and wage agreements concluded between the Seoul Metropolitan Government Bus Transport Business Association and the Korea Automobile Workers’ Union Seoul Bus Workers’ Union (hereinafter “instant collective agreement, etc.”).

(2) In the instant collective agreement, etc. to be applied to the Plaintiff, the driver’s duty system is based on the two-day system per day, 40-hour work per week, and is set forth in the five-hour overtime work per week (hereinafter “Extended work day”), one day off per week, and one day off per week.

(3) The instant collective agreement, etc. established the standards for the application rate of overtime work days at the Central Labor Relations Commission in relation to the “Extended work days” and stipulated that the Labor Relations Commission shall not interfere with the distribution and operation of vessels according to the characteristics of each company and route.

(4) Upon the request of workers, the Defendant operated the “Extended Work Hours” work in consideration of the number of times of commuting to and from work. The Plaintiff driven the city bus three times a day on the “Extended Work Hours” according to the Defendant’s allocation criteria, and the Defendant paid the Plaintiff’s “Extended Work Hours” overtime allowance equivalent to 150% of the hourly wage based on ten hours of work.

C. Examining the following circumstances in light of the legal principles as seen earlier, it is difficult to view the Defendant’s workplace as the “Extended work day” as the day fixed on a holiday. Ultimately, with respect to overtime work exceeding 10 hours per day, which cannot be viewed as a holiday, holiday work allowances under Article 56 of the former Labor Standards Act do not need to be paid.

(1) According to the reduction of working hours per week to 40 hours, the instant collective agreement, etc., based on which the 5th day work per week was set on the basis of the 5th day work per week and the 1st day work day was set on a weekly holiday, but did not set “Extended work day” as a holiday. There is no data to acknowledge a separate practice that considers “Extended Work Day” as a holiday

(2) The Defendant only paid overtime allowances prescribed in the instant collective agreement, etc. for work performed on the “Extended Work Hours” and did not have paid such allowances on a holiday basis. There are no circumstances to regard such overtime allowances as holiday allowances in light of the details and circumstances leading up to the payment of such overtime allowances and the name thereof.

D. Nevertheless, the lower court upheld the first instance judgment, which accepted the Plaintiff’s claim seeking the payment of overtime work allowances equivalent to 200% of the Si’s rate including holiday work pay (50% of the Si’s rate), on the premise that the overtime work performed on the “Extended work day” constitutes holiday work under the Labor Standards Act, and constitutes overtime work for which holiday work allowances are to be paid. The lower court erred by misapprehending the Supreme Court precedents regarding holiday work allowances under the Labor Standards Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Of the part against the Defendant, the part of the lower judgment against the Defendant’s claim for premium pay for holiday work is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed as are without merit. It is so decided as per

Justices Lee Dong-won (Presiding Justice)