Standard for determining whether break or WIG hours prescribed in a labor contract belong to working hours or recess 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, which are 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, if the waiting time, rest, and sleep hours are not guaranteed free use by the employee, but actually under the employer’s direction and supervision, they shall be included in work hours. Determination is not uniformly based on the contents of labor contract, the rules of employment and collective agreement applicable to the relevant workplace, the details of work provided by the employee, whether the employee interferes with or supervises the employee, whether the employee is in a work site, and whether the hours are part of work hours or not, depending on the type of specific type of business or work. Determination ought to be made by comprehensively taking account of various circumstances, such as whether the employer interferes with or supervises the employee’s actual rest, and whether there are other circumstances to recognize the employer’s direction and supervision.

Articles 50 and 54 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 2006Da41990 decided Nov. 23, 2006 (Gong2007Sang, 36)

Plaintiff (Law Firm Han, Attorneys Shin Shin-soo et al., Counsel for the plaintiff-appellant)

Korea Security Co., Ltd. (Law Firm Shin, Attorneys Yellow-chul et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2013Na3226 decided September 3, 2014

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

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.

The term “working hours” refers 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, which are set by the employer’s direction and supervision during working hours. Therefore, even if an employee does not actually engage in work during working hours, it shall be deemed that the hours are not free to use, but if the employee is actually under the employer’s direction and supervision (see, e.g., Supreme Court Decision 2006Da41990, Nov. 23, 2006). Whether working hours fall under the break hours or water surface hours as set forth in a labor contract or fall under the rest hours according to the type of a specific type of business or business. Such determination ought to be made in full view of the contents of the labor contract, rules of employment and collective agreement applicable to the relevant workplace, the details of work provided by the employee, whether the employee interferes with or supervises the employee, whether the employee can freely use the rest hours, and other circumstances to the extent that the employee actually interferes with or supervises the employer.

2. The lower court determined that it was difficult to view the substance of recess hours stipulated in the employment contract of the instant case as working hours or hours, on the following grounds.

A. The Plaintiff entered into the instant employment contract with the Defendant established for the purpose of accommodation expenses, etc., and thereafter worked at ○ Elementary School from June 1, 2009 to December 21, 2009 as security guards at △ Library from January 1, 2010 to November 21, 2010. The Plaintiff’s work constitutes surveillance work, which is performed for the purpose of crime prevention, protection, or patrol after the ordinary day and the weekend, and constitutes surveillance work.

B. Since ○○ Elementary School and △△ Library have a room for rest or water surface, the Plaintiff was able to take rest in an independent space from a place during recess hours.

C. The Unmanned Security System is established at the ○ Elementary School and △△ Library, which primarily takes charge of the guard work, and if the Unmanned Security System is operated, the plaintiff seems to have never any other work.

D. The Defendant, an employer, did not individually and specifically instruct the Plaintiff to guard or patrol, supervise the work status, or demand a separate report while working, and there seems to have been no urgent situations, such as fire, theft, etc. during the Plaintiff’s work period.

3. Examining in light of the aforementioned legal principles, the lower court’s determination is justifiable. In so determining, the lower court did not err by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, by misapprehending the legal doctrine regarding working hours and recess hours, or by violating the Supreme Court precedents. The Supreme Court Decision 9Da7367 Decided September 22, 2000 cited in the grounds of appeal is different from the instant case, and thus, it is inappropriate to invoke

4. The Plaintiff’s appeal is dismissed as it is without merit, 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 Kim Chang-suk (Presiding Justice)