2012Na2553 Wages

○ ○ Private Teaching Institutes

Daegu District Court Decision 2012Kadan450 decided November 9, 2012

May 16, 2013

July 11, 2013

1. The part against which the judgment of the court of first instance lost is revoked and the plaintiff's claim against the revoked part is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 71,812,241 won with 6% interest per annum from December 26, 201 to the service date of the written amendment of the claim, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

It is so decided as per Disposition.

1. Facts of recognition;

A. From October 1, 200, the Plaintiff served as a technical staff who performs the duties of protection (e.g., protection) in the facility management and safeguard of the racing university operated by the Defendant corporation from October 1, 200, and is currently a Grade 10 technical staff in the current list of technical staff.

B. The defendant is classified and appointed as administrative, technical, skilled, and temporary workers. According to Article 12 of the Regulations on the Service of Employees of Racing University (Enforcement of July 1, 1995, repeal of April 13, 2007), the hours of working shall be from 9:00 to 17:00,000, and Saturdays shall be from 9:00 to 13:00,000, and the hours of working of technical and management personnel shall be determined separately according to their special circumstances.

C. On October 1, 200, the Plaintiff worked for the training period only during the training period, but from March 5, 2001, the Plaintiff was in charge of water level and security work from 08:00 to 08:00 on the following day. Specifically, during the training period, the Plaintiff performed facility maintenance and inspection, such as the management of visitors, the opening and closing of the training room, the water level and security service of the training room, and the replacement of light lights, etc. At night (from 19:00 to 06:00 on the following day). At night (from 19:00 to 06.00 on the following day), the Plaintiff performed security and patrol at one or more times until the school system was installed, but thereafter, the patrol work was almost not performed, and after that, during the training period, the Plaintiff took place in the waiting room or prepared a separate waiting room from the indoor rest.

D. Meanwhile, the Defendant regulates the payment of the remuneration of the teachers and staff. According to this provision, the monthly basic salary of ordinary employees is determined for the amount specified in the salary table by class, and the payment of the additional salary paid according to the conditions of duties is prescribed in the Regulations on the Allowances for the Teachers and Staff. According to this, the kind of bonus, scope of payment, amount of payment, other allowances, etc. of the supplementary salary paid to the same technical profession as the Plaintiff is prescribed in the said Regulations. According to the foregoing, the kinds of allowances paid to the same technical profession as the Plaintiff are prescribed as bonus allowances, fixed-time allowances, additional allowances, family allowances, family allowances, children’s school allowances, and other job class allowances, such as class allowance, research subsidy, transportation subsidy, regular leave allowances, regular leave allowances, family support expenses, etc.

E. Accordingly, the Defendant, including the Plaintiff, paid a certain amount of bonus, fixed-time allowance, family allowances, and annual holiday allowances to the employees in charge of the protection (water level and expense) work in the form of work on a 24-day basis, including the Plaintiff. Considering the above characteristics of duties, the Defendant did not pay holiday work or overtime work allowances due to actual working days or working hours, and paid a certain amount every month for basic salary regardless of working days or working hours, such as salary, daily allowance, transportation allowance, research allowance, job grade allowance, school affairs allowance, family allowances, and holiday allowances, regardless of the number of working days or working hours. Furthermore, the Defendant paid an additional amount of bonus, fixed-time allowance, household allowance, regular holiday allowance, and annual holiday allowance every year from the time of the Plaintiff’s entry to the time of the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 3 through 8, and 10, and the purport of the whole pleadings

2. Assertion and determination

A. The assertion

The plaintiff asserts that the plaintiff is obligated to pay 71,812,241 won as overtime allowances, night work allowances, and holiday work allowances from January 2009 to December 201, 201, as the plaintiff worked in the form of 24 hours a day as a manager of the racing University, and worked in the form of 24 hours a day to 8 hours a day in addition to overtime work, night work, and holiday work as prescribed by the Labor Standards Act.

On the other hand, the defendant asserts that the plaintiff's form of employment constitutes surveillance and control work, and that the plaintiff entered into a wage payment contract based on the comprehensive wage system (hereinafter referred to as "comprehensive wage contract") with the contents that the plaintiff pays various allowances for overtime work, night work, holiday work, etc. as a certain amount of monthly allowance under the Labor Standards Act at the time of joining the plaintiff, and accordingly, the defendant paid all the inclusive wages that include overtime work allowances, night work allowances, holiday work allowances, and holiday work allowances to the plaintiff. Thus, the plaintiff cannot respond to the plaintiff's claim in this case.

B. Determination

(1) In principle, an employer shall calculate and pay statutory allowances, such as overtime work allowances, night work allowances, and holiday work allowances, based on the determination of a basic wage in a labor contract and the basis thereof, if an employee actually worked for overtime work, night work, and holiday work according to the actual working hours. However, such principle of wage payment is premised on the number of working hours. However, there may be cases where it is deemed difficult to calculate working hours in light of the working hours, such as surveillance and control work, and the nature of work. In such a case, without calculating the basic wage in advance between the employer and the employee, the amount included in the statutory allowances is determined as a monthly wage or daily wage, while calculating the basic wage in advance without distinguishing the legal allowances, if a wage payment contract based on the so-called comprehensive wage system, which stipulates that a certain amount shall be determined as a statutory allowance and to be paid without superior to the number of working hours, it cannot be deemed null and void if it otherwise is deemed that there is no disadvantage to the employee and justifiable in light of various circumstances (see, e.g., Supreme Court Decision 95Da9898.

(2) Article 12 of the Rules of Employment of the Racing University provides that the working hours of employees shall be 8 hours per day, 40 hours per week (Paragraph 1), and the working hours shall be 9:00 p.m. and 17:0 p.m. and 13:0 p.m. (Paragraph 2). Article 16 provides that the university shall set Saturdays and Sundays as weekly paid on a weekly holiday: Provided, That the same shall not apply to employees on a daily basis, and Article 28 provides that the remuneration shall be based on the regulations of the University’s remuneration, which shall be divided into salary and daily pay, and that the overtime, night, and holiday allowances shall be paid in proportion to the Labor Standards Act.

However, in light of the facts acknowledged earlier and the evidence as seen earlier, it is reasonable to view that the so-called comprehensive wage contract was concluded between the Plaintiff and the Defendant to pay a certain amount of monthly overtime work hours including overtime work hours, night work hours, and holiday work hours exceeding the standard working hours under the Labor Standards Act as a matter of course, while it is difficult to calculate actual working hours, taking into account the characteristics of working hours and the nature of the work, etc. In light of the aforementioned circumstances, it is reasonable to deem that the so-called comprehensive wage contract was concluded, which provides for overtime work hours exceeding the standard working hours under the Plaintiff’s implied consent, regardless of working hours or night work hours, as well as overtime work hours, night work hours, and holiday work hours in excess of the standard working hours under the Labor Standards Act. Accordingly, the Plaintiffs’ comprehensive wage contract cannot be deemed null and void, given that it is unfavorable to the Plaintiff or it is not necessary to change the working hours and night work hours under the Labor Standards Act to the extent that it is necessary for the Plaintiff to do so under the premise that it is necessary to do so.

B. The defendant is in accordance with the rules on the remuneration of the teachers and staff, and is paid as a monthly salary in accordance with the basic salary and the various allowances (Article 28 of the Rules of Employment). The basic salary of the general staff is the amount specified in the salary table, and the kinds, scope of payment, and other allowances to be paid to the teachers and staff under the Rules on the Allowances for the Teachers and Staff.

However, Article 29 of the Rules of Employment of the race and Sports University only stipulates that an employee’s overtime work allowance, night work allowance, and holiday work allowance shall be paid based on the Labor Standards Act, and does not stipulate that an employee’s overtime work allowance, night work allowance, and holiday work allowance shall be paid separately from the basic salary under the Rules of Employment and Remuneration for Teachers and Staff, and that an employee’s overtime work allowance, night work allowance, and holiday work allowance shall be paid by clearly dividing it into the detailed items. In particular, even though the Plaintiff’s overtime work allowance, etc. is an allowance of the nature that should be calculated and paid based on the basic salary according to the actual working hours, it does not seem to have been calculated based on the hourly concept as the starting point, and the monthly basic salary by class

(C) In addition, although the Rules stipulate the kinds of allowances to be paid to the teachers and staff in detail, they do not call for overtime work allowances, etc. as allowances to be paid to the teachers and staff, while in the Rules of Allowances, it is heated that the employees such as the Plaintiff are paid as bonus allowances, fixed-time allowances, additional allowances for good attendance allowances, family allowances, children's school allowances, and other allowances for class allowance, school affairs subsidy, school affairs subsidy, transportation subsidy, wage, and long-term leave allowance as allowances. Despite the fact that the Plaintiff is not a teacher in charge of the protection (water level and expense) in the table of the class of the technical position, it is reasonable to view that the Defendant paid a certain amount monthly amount as allowances under the Rules of the Rules of the Allowances, regardless of the fact that the Plaintiff was paid a certain amount under the name of eight to nine allowances such as research allowances, class allowance, school affairs allowance, school affairs allowance, etc. in accordance with the Rules of the Allowances. In addition, in light of the fact that the Defendant paid a monthly amount as allowances, regardless of the Plaintiff's actual service allowances, it is reasonable to deem that the Defendant paid monthly allowances as allowances as allowances.

(D) On May 208, 2008 according to the Plaintiff’s statement of benefit, remuneration (the family allowance was paid and bonus allowance was not paid) is 2,492,150 won. This is against the basic salary amount of KRW 962,50, and the amount calculated by adding various allowances of KRW 1,529,650 corresponding to 159% of the basic salary to the total monthly remuneration. On February 2, 2012, both remuneration (the family allowance was paid and bonus allowance was not paid) are also 2,525,960 won to the basic salary amount of KRW 1,465,860, which is 138% of the basic salary, and it is difficult to conclude that the Plaintiff paid the total monthly remuneration amount of KRW 1,465,860 to the employees who violated the Labor Standards Act (the family allowance was paid, and the family allowance was not reduced to KRW 1,529,100,000 as the basic salary amount of KRW 20.10.36).

(E) In light of the fact that the Defendant did not pay holiday work or overtime work allowances due to the actual working days or working hours to the employees in charge of the protection (water level and expenses) in the racing University, including the Plaintiff, in the form of work for 24 hours a day and 14 hours a day, and paid a certain amount monthly amount as an allowance in addition to the basic salary, as seen earlier, as well as family allowances, overtime work allowances, additional dues, etc. on the details of the salary schedule. In light of the fact that the Plaintiff received the same without any specific objection during the considerable period from the time of the Plaintiff’s entry to the time of the instant lawsuit, it is reasonable to deem that the Defendant explicitly consented to the

(3) As to this, the Plaintiff asserts that, unless the Defendant obtained the approval of the Minister of Employment and Labor to exclude the application of the provisions on working hours, etc. of the Labor Standards Act, the Plaintiff cannot be exempt from the obligation to pay overtime work allowances.

Although the Defendant is a person who does not obtain the approval of the Minister of Employment and Labor in the process of concluding the instant comprehensive wage contract, the wage payment contract under the comprehensive wage system is to pay the aggregate of the allowances for extension, night, and holiday work under the Labor Standards Act without calculating the basic wage under the premise that the provisions on work hours, recess and holiday are applied as it is, and it does not intend to exclude the application of the provisions on work hours, recess and holiday under the Labor Standards Act. Thus, in concluding a wage payment contract under the comprehensive wage system with workers engaged in surveillance or intermittently, it does not require the approval of the Minister of Labor to exclude the application of the provisions on work hours, recess and holiday under the Labor Standards Act (see Supreme Court Decision 2003Da66523, Aug. 19, 2005). Thus, the Plaintiff’s assertion that the instant comprehensive wage contract without the approval of the Minister of Labor is null and void is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and dismissed the plaintiff's claim corresponding to the revoked part. It is so decided as per Disposition.

Judges of the presiding judge, Gimsung

Judges Park Sung-sung

Judges Laos