209Na4816 Wages, etc.

300 (хххXXх-ххххххх)

Gwangju Northern Northern OOOOdong 00 apartment units - Dong

Attorney Kang Sung-chul, Counsel for the plaintiff-appellant

주식회사◆◆공사

Gwangju Northern Northern-gu OOdong

Representative Director Kim Gi-il

Attorney Jeon-tae et al., Counsel for the defendant

Gwangju District Court Decision 2008Gahap10879 Decided August 20, 2009

April 21, 201

June 30, 2010

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be revoked, and all the claims of the plaintiff (appointed party) and the designated party shall be dismissed.

The defendant shall pay to the plaintiff (appointed party) and the appointee the amount calculated by applying each rate of 5% per annum from November 5, 2008 to June 30, 2010, and 20% per annum from the next day to the date of full payment.

2. The defendant's remaining appeals against the plaintiff (appointed party) and the appointed party are all dismissed.

3. 1/2 out of the total costs of litigation shall contain the Plaintiff (Appointed Party) and the appointed parties, and the remainder of 1/2, respectively, by the Defendant.

Purport of claim

The defendant shall pay to the plaintiff (appointed party, hereinafter referred to as the "Plaintiff") and the appointee 20% interest per annum from the day after the delivery of a copy of the complaint to the plaintiff's (appointed party, hereinafter referred to as the "party") and the amount of money in accordance with the ratio of 10% per annum from the day after the delivery of a copy of the complaint.

Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and all claims of the plaintiff and the designated parties corresponding to the revoked part shall be dismissed.

1. Quotation of the reasons for the judgment of the first instance;

이 법원이 이 사건에 관하여 설시할 이유는 제1심 판결 제2쪽 제10행의 '김◆◆' 을 '김○○'으로, 제11쪽 제14행의 '피고의 주장은 이유 없다'를 '원고의 주장은 이유 없다' 로 고치고, 피고가 이 법원에서 한 새로운 주장에 대하여 다음과 같은 판단을 추가하 고 , 제1심 판결문 제12쪽 제11행부터 제13쪽 제1행까지 기재된 '제3의 라. 항 소결' 부 분을 고쳐 쓰는 외에는, 제1심 판결 이유 부분 기재와 같으므로 민사소송법 제420조 본문에 의하여 이를 그대로 인용한다.

2. The part concerning judgment and dismissal on the defendant's additional argument

A. As to overtime work allowances

(1) The defendant's assertion

피고는 시간외 근무수당의 경우 원고와 선정자들이 작업을 준비하고 현장으로 이동하는 등으로 시간외 근무가 빈번할 뿐만 아니라 작업 장소가 분산되어 있는 등으 로 시간외 근로시간을 정확하게 산정하는 것이 어려운 점을 고려하여 1일 2시간씩의 시간외 근무를 하는 것으로 보아 임금을 지급하기로 하는 포괄임금계약을 체결하였을 뿐 원고와 선정자들이 시간외 근무를 한 사실이 없고 , 특히 선정자 오◆◆은 정비원으 로서 시간외 근무를 전혀 하지 않았음에도 불구하고 시간외 근무수당을 구하는 것은 부당하다고 주장한다.

(2) Determination:

However, due to the characteristics of garbage treatment work, in which it is impossible to identify overtime work due to cleaning work while travelling a street without a fixed place of work according to the standards for compilation of the budget for a street cleaners in the collective agreement and the Ministry of the Interior and Safety, it is allowed to dispute the working hours on the ground that the actual working hours fall short of the actual working hours agreed upon (see Supreme Court Decision 2006Da81523, Nov. 29, 2007), if the worker is regarded as working hours due to an agreement between labor and management, he/she shall not be allowed to dispute the working hours on the ground that the actual working hours fall short of the actual working hours agreed (see Supreme Court Decision 2006Da81523, Nov. 29, 2007).

This case sought the difference between the plaintiff and the defendant on the basis of ordinary wages calculated by putting the plaintiff on a two-hour basis for the overtime working hours agreed with the defendant, and the defendant's assertion that the plaintiff or the designated parties did not work overtime hours more than two hours a day on a two-hour basis is without merit, on the premise that the plaintiff or the designated parties did not work overtime hours more than two hours a day.

B. As to the additional rate of overtime work allowances

(1) The defendant's assertion

The defendant asserts that the defendant should apply 25/100 additional rates for overtime work of every week from July 1, 2005 to June 30, 2008, as prescribed by the Labor Standards Act, on the basis of ordinary wages including continuous service charges, etc., to the defendant who is obliged to pay the difference of wages as alleged by the plaintiff, and 50/100 additional rates for the remaining hours in excess.

(2) Determination

As seen earlier, part of the working conditions stipulated in the instant collective agreement that excludes the continuous service charges, etc., to be included in ordinary wages in light of the nature of overtime work allowances, from ordinary wages, is null and void pursuant to Article 15(1) of the Labor Standards Act, and thus, overtime work allowances should be calculated in compliance with the criteria stipulated in the Labor Standards Act.

However, according to Article 1 subparag. 3 and Article 3(1) and (2) of the Addenda of the former Labor Standards Act (amended by Act No. 6974 of Sept. 15, 2003), a business owner who ordinarily employs not less than 100 but less than 300 workers shall reduce the weekly working hours from July 1, 2006 to 40 hours, and for three years thereafter, shall be extended within the limit of 16 hours per week pursuant to an agreement between the parties concerned. The additional rate of wages per week wage per week for the extension of 4 hours per week is not more than 50/100 of the ordinary wage, but not more than 25/100 of the ordinary wage. Accordingly, in calculating overtime work hours that the plaintiff and the designated person did not receive from the defendant, 50/100 of the ordinary wage shall not be added to the rest of more than 10/100 of the first weekly working hours after 206.

Therefore, the above part of the defendant's argument is reasonable, and therefore, the overtime work allowance is calculated by applying 1.25 additional rates for 1.25 hours a month (=4 weeks a week) and 1.50 x 1.50 x 16 hours an hourly ordinary wage + 1.25 x x 1.25 m. of hourly ordinary wage.

C. Sub-committee

Therefore, the defendant should pay excess work allowance, annual paid leave allowance, monthly paid leave allowance, and monthly paid leave allowance based on the ordinary wages stated in the attached Form 2. The defendant should pay the plaintiff and the selected person for the above continuous service additional charges, fixed amount of meal service, transportation subsidy, sanitation allowance, and the amount of monthly paid allowance. Accordingly, the difference between the newly calculated overtime work allowance, annual paid leave allowance, and monthly paid leave allowance and the existing paid amount is as shown in the attached Table 3.

Therefore, from November 5, 2008 following the day after the delivery of a copy of the complaint of this case with respect to each of the above amounts, the defendant is obligated to pay 5% per annum under the Civil Act until June 30, 2010, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

Therefore, the claim of this case by the plaintiff and the designated parties shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, it shall be accepted in part of the defendant's appeal, and the part against the defendant ordering payment to the defendant in excess of the above cited money in the judgment of the court of first instance shall be revoked, and all of the plaintiff and designated parties shall be dismissed. The remaining appeal by the defendant against the plaintiff and designated parties shall be dismissed as it is without merit. It is so decided as per Disposition.

Masungwon (Presiding Judge)

Mahee-hee

Rule 5