[1] The validity of a wage payment contract based on the comprehensive wage system (limited validity)

[2] Where an employer obtains approval from the Labor Relations Commission pursuant to Article 49 subparag. 3 of the former Labor Standards Act for surveillance workers, whether the employer is obligated to pay overtime and holiday allowances (negative), and whether the provision on overtime and holiday work under the Labor Standards Act or the Rules of Employment applies to overtime and holiday work (negative)

[3] Whether the application for approval by the Labor Relations Commission for the supervisory worker under Article 49 subparagraph 3 of the former Labor Standards Act requires the employee's consent (negative)

[1] In the conclusion of an employment contract, an employer shall, in principle, determine the basic wages for workers and pay them in addition to the allowance. However, in a case where an employer concludes a wage payment contract based on the so-called comprehensive wage system with the content that the total amount of the allowance is determined as monthly wage or daily wage, or that the amount of the monthly fixed amount is paid as the allowance, without calculating the basic wages in advance, in consideration of the working hours, the form of employment, and the nature of the work, etc., if it is deemed that there is no disadvantage to the worker and that it is justifiable in light of all the circumstances,

[2] In the case where the worker's work is the primary contents of surveillance, and the worker's physical and mental tension is a surveillance work under Article 49 (3) of the former Labor Standards Act (amended by Act No. 5309 of Mar. 13, 1997), as long as the employer obtains approval from the Labor Relations Commission on the exclusion of the application of the provisions of the Act on Work Hours, etc., the employer is not obligated to pay the worker overtime allowance and holiday allowance under the provisions of the Act, and where the employer obtains approval from the Labor Relations Commission as a surveillance work, the employer is exempted from the application of the provisions of the Act on Work Hours, Holidays and Holidays under Article 49 of the former Labor Standards Act, although the rules on work hours, overtime work, weekly holiday, etc. are prescribed under the rules of employment, and even if there is no provision excluding this, the provisions on overtime and holiday work of the Labor Standards Act or the rules of employment are not applicable.

[3] In light of the nature of the business, it constitutes surveillance workers, and upon approval of the Labor Relations Commission under Article 49 subparagraph 3 of the former Labor Standards Act, it does not require employees’ consent on application for authorization other than the applicable provisions, since the provisions on working hours, holidays, and recesss in Chapters IV and V of the same Act are not applicable.

[1] Articles 22 (see current Article 24) and 46 (see current Article 55) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [2] Article 49 subparagraph 3 (see current Article 61 subparagraph 3) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997) / [3] Article 49 subparagraph 3 (see current Article 61 subparagraph 3) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997)

[1] [2] Supreme Court Decision 95Da4056 delivered on April 25, 1997 (Gong1997Sang, 155) / [1] Supreme Court Decision 96Da3895 delivered on July 22, 1997 (Gong1997Ha, 2631), Supreme Court Decision 96Da24699 delivered on March 24, 1998 (Gong1998Sang, 1131) / [2/3] Supreme Court Decision 96Da30571 delivered on November 22, 1996 (Gong197Sang, 25) / [2] Supreme Court Decision 96Da39042 delivered on December 23, 1996 (Gong197Sang, 5297Da39797 delivered on April 39, 197)

Plaintiff

00.0.00.00.000.000.00

Seoul High Court Decision 97Na54606 delivered on December 3, 1998

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In a case where an employer concludes a labor contract without calculating a basic wage in a manner that determines the basic wage of a worker and pays an additional allowance based on the determination of the worker’s basic wage, or where an employer concludes a wage payment contract based on the so-called comprehensive wage system with the content that the total amount of the allowances shall be determined as a monthly wage or daily wage, or that the employee shall pay a certain monthly amount as an allowance without calculating a basic wage in advance, taking into account the hours of work, the form of employment, and the nature of work, etc., if it is deemed that there is no disadvantage to the worker and that it is justifiable in light of all circumstances (see Supreme Court Decision 96Da24699, Mar. 24, 199

In light of the records, the plaintiff's age was exceeded the retirement age limit under the rules of employment of the defendant company, but he was employed as a security guard on December 19, 1989 as well as 8 hours per day (08:30 to 18:00) and worked as a special worker's allowance of 50% or more of ordinary wages. However, in light of the company's circumstances, the plaintiff was employed as a night guard from 18:00 to 08:00 on the following day from 1996 to 100 on March 20, 1996, the plaintiff was employed as a special worker's allowance for non-party 1, who was employed as a security guard on December 19, 1989. The defendant company was also waiting or waiting for rest, without considering the plaintiff's actual working hours or duty's monthly pay to the plaintiff for non-party 1, who was employed as a basic worker's monthly pay for non-party 1, regardless of its basic worker's monthly pay.

Furthermore, in light of the unique characteristics of the Plaintiff’s work form and the above legal principles, the wage payment contract was changed to the so-called comprehensive wage system that requires the payment of monthly pay of a certain amount of monthly wage including overtime and holiday work allowances regardless of working days or working hours under the Plaintiff’s express or implied consent by taking into account working hours, the form of work, the nature of work, etc.

In the same purport, the recognition and judgment of the court below that the comprehensive wage system was changed to that to be paid as a monthly wage of a certain amount every month, including overtime work allowances and holiday work allowances, is justifiable, and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding legal principles

The ground of appeal by this point is without merit.

2. The record reveals that the plaintiff worked as a night guard from 18:00 every day to 08:00 the following day. However, while residing in the residential facilities of the defendant company, the plaintiff performed surveillance duties such as fire prevention and periodic external patrol (average 6 hours per day and average 20 hours per hour during the one patrol) for six hours per day, and the remaining waiting or break out. In addition, the non-party 2, who is the plaintiff's wife, was in charge of the main week at the restaurant of the defendant company, and was receiving monthly salary from the defendant company, but the plaintiff was only engaged in some main tasks of the non-party 2, or clean up the premises of the defendant company, and was not a duty under the defendant company's direction, and the defendant company was not a duty under the defendant company's personnel management regulations, and was paid the defendant company's night duty under Article 39 of the former Labor Standards Act to the non-party 3, which was exempt from the application of the former Labor Standards Act (amended by Act No. 1394, Sep. 1, 1993). 197.

The factual relations are as above. Since the plaintiff's business is the primary content of surveillance, physical and mental tensions are small, it constitutes surveillance work under Article 49 subparagraph 3 of the former Labor Standards Act. Therefore, as long as the Labor Relations Commission approved as to the exclusion from the application of the provisions of the Act on Work Hours, etc., as above, the defendant company does not have the obligation to pay the plaintiff overtime and holiday allowance (see, e.g., Supreme Court Decisions 96Da3234, Aug. 26, 1997; 96Da30571, Nov. 22, 1996).

In addition, in light of the fact that the Labor Relations Commission's approval as a surveillance work is excluded from the application of the provisions on hours of work, holidays and holidays pursuant to Article 49 of the former Labor Standards Act, even though the rules of employment stipulate the hours of work, overtime work, weekly holidays, etc., and even if there is no provision excluding them, the provisions on overtime and holiday work under the Labor Standards Act or the above rules of employment cannot be applied to the Plaintiff as long as the Defendant company obtained approval as to exclusion from the application of the provisions of the Act as above (see, e.g., Supreme Court Decisions 96Da3234, Aug. 26, 1997; 96Da30571, Nov. 22, 1996).

In addition, as alleged by the plaintiff, the application of the provisions on working hours, holidays, and recess in Chapters IV and V of the former Labor Standards Act is not subject to the approval of the Labor Relations Commission under Article 49 subparagraph 3 of the former Labor Standards Act, and it does not require the consent of the worker (see Supreme Court Decision 96Da30571, Nov. 22, 1996). The application period for exclusion is limited to one year since there is no indication that its validity is limited to one year on the entry of the application approval (Evidence A) and the application approval (Evidence A4), and the application period for exclusion is not limited to one year. In a case where the above application period is different from that of the approval period, the application period becomes invalid from the time of the approval, but there is no circumstance that the Plaintiff’s employment period changed differently from the time of the approval.

Therefore, in the same purport, the plaintiff is a surveillance worker, and since the Labor Relations Commission approved the exclusion from the application of the regulations on working hours, holidays, and rests except for night work allowances from the Labor Relations Commission on September 7, 1993, the plaintiff's claim against the above allowances is rejected on the ground that there is no obligation to pay overtime work allowances excluding the part on night work allowances, holiday work allowances, and holiday work allowances, and the judgment of the court below is just and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of the legal principles on the Labor Standards Act, as otherwise alleged in the

Ultimately, the argument in the grounds of appeal, which is premised on the application of the provision on working hours, holidays, or recess under the rules of employment to the Plaintiff, is not accepted.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)