(a) Method of calculating additional wages where work on holidays and overtime work overlap;

(b) The case holding that where a separate corporation, chain head office and its affiliated companies have been engaged in the same business as before and after the organizational change in form, such as formally submitting a resignation for the operation convenience of a company following the organizational change, etc. between the headquarters of a separate corporation, chain head office and its affiliated companies, the employment relationship is deemed to continue because the interim

(a) Where the work on a holiday and overtime work overlap, the calculation shall be made by adding the additional wages for the work on a holiday and the additional wages for the overtime work;

B. Where a separate corporate chain head office and its affiliated companies are formally submitted a resignation for the operation convenience of a company, and actually engaged in the same business as before and after the organizational change, the above interim retirement shall be deemed null and void as a false declaration of agreement, and even if a company’s human and physical organization was consolidated or a organizational change was made, as long as the company continues to maintain the identity without the corporate restructuring itself, it is merely a replacement of the management body, and the labor relationship shall be deemed to have been continued without the division by the interim retirement.

A. Article 46 of the Labor Standards Act

[Defendant-Appellant] Defendant 1 and 1 others (Attorney Ha-dae et al., Counsel for defendant-appellant)

Gangwon Industrial Company

Seoul High Court Decision 90Na2736 delivered on August 22, 1990

The part of the judgment below against the plaintiffs is reversed and that part of the case is remanded to the Seoul High Court.

As to the Plaintiffs’ grounds of appeal

1. As to the claim portion of the plaintiffs' statutory system allowances of this case, the court below accepted the judgment of the court of first instance. The plaintiffs applied for statutory system allowances from April 1, 1985 to January 1, 1988, which is the period for which the plaintiffs claimed legal system allowances, worked for a certain number of days other than normal working hours, and the work day from April 1, 1985 to 19:00 to 19:00 to 12 hours a day, excluding the meals and one hour break in accordance with the defendant's instruction, and accordingly, sought payment of overtime work and holiday work allowances based on the assertion that all of the work days worked for more than eight hours a day and four hours a day, the prescribed number of hours worked for the plaintiff's overtime work in addition to normal working hours, and the plaintiffs applied for the payment of overtime work and holiday work allowances of this case. Accordingly, since the defendant could not accurately calculate overtime work hours beyond the prescribed number of hours, the defendant recognized that the worker paid overtime work of this case was justifiable in light of the fact that the plaintiffs paid overtime work hours.

However, according to the evidence adopted by the court below, in particular, Eul evidence Nos. 1-29 through 34 (Plaintiff's Wage Ledger) and Eul evidence Nos. 29 through 34 (Plaintiff's Wage Ledger) from among the evidence adopted by the court below, the defendant deemed that workers work overtime hours each day until July 1987, such as the court below's approval, and paid overtime work allowances for 25 hours each month. From August 1987, the defendant paid overtime work hours each day more than the previous one hour, and then paid overtime work hours every two hours a day before the previous one, the average of 25 hours each day from the 1987. Thus, the court below's fact-finding should have recognized that the plaintiffs work overtime hours until January 1, 1988 and maintained it within the limit of 198.8.18.18.18.1987.

Furthermore, in calculating the amount of overtime work allowances and holiday work allowances, the lower court calculated 150% of hourly ordinary wage for overtime work as overtime work allowances, and calculated as overtime work allowances by 150% of hourly ordinary wage for all overtime work hours through the number of normal work days and the number of overtime work days, and calculated as overtime work allowances by 50% of hourly ordinary wage for the prescribed number of overtime work hours and 50% of hourly ordinary wage for overtime work hours as overtime work allowances. However, the lower court’s calculation method of the lower court is the same as in the lawsuit, but it is apparent that the calculation method of the lower court is to separately calculates additional wages for overtime work and overtime work hours for the overlapping part of overtime work and overtime work hours, and therefore, it cannot be said that there is an error in the misapprehension of legal principles as to Article 46 of the Labor Standards Act.

2. According to the reasoning of the judgment below, while the above plaintiff was employed on July 20, 1968 with regard to the period of service for the plaintiff 1, 1968's retirement allowance for the defendant 2, it is difficult for the plaintiff 1 to be employed on July 31, 1974 while submitting a resignation letter to the defendant 1, who was employed on July 31, 1978, and dispatched to the defendant 1, who was employed on the transportation division from the next day to the defendant 1, 300's retirement allowance for the defendant 2, who was employed on the 198's retirement allowance for the above 197. The court below determined that the plaintiff's retirement allowance for the above defendant 2, who was employed on the 197th day after the above 197th day after the retirement allowance for the defendant 1, who was employed on the 197th day after the above 197th day after the retirement allowance for the above 197th day after the retirement.

However, according to the records, the plaintiff 1 was employed on the 3th day after July 20, 1968, which is a separate organization of the defendant 1 corporation, but the defendant company removed the above 13th day after the incorporation of the 1st day after the incorporation of the 1st day after the incorporation of the 1st day after the incorporation of the 1st day after the removal of the transportation and organization. The defendant was ordered to submit the 1st day after the issuance of the 1st day after January 1, 1971 and the 1st day after the change of the 1st day after the 1st day after the 1st day after the 1st day after the 197th day after the 1st day after the 1st day after the 1st day after the 1st day after the 1st day after the 1st day after the 1st day after the 1st day after the 2nd day after the 1st day after the 1st day of the above 1st day's resignation.

In light of the above facts, interim retirement of the above plaintiff on July 31, 1974 and February 28, 1978 should be null and void as a false conspiracy. Meanwhile, as long as a company continues to maintain the identity without being abolished even if the company's human resources and physical organization was consolidated or changed its organization, it is merely a replacement of the management body, and the labor relationship with the above plaintiff and the defendant continue to exist without being severed before and after the above retirement date.

Therefore, the continuous service period for the calculation of the retirement allowance for the plaintiff's tea shall be 19 years and 7 months from July 20, 1968, which is the first time of employment, to January 31, 198, which is the last time of retirement. However, the court below held otherwise that the above plaintiff's continuous service period is 9 years and 11 months from March 1, 1978 to January 31, 198 cannot be said to be the result of misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the calculation of the retirement allowance due to the calculation of the retirement allowance. The argument is justified.

Therefore, the part of the judgment below against the plaintiffs is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)