(영문) 대구지방법원 2014.4.25. 선고 2013구합2657 판결

A. On January 14, 2013, the Plaintiff entered into an employment contract for the first stage public service business (hereinafter “instant employment contract”) with the Director of the Park Management Office and B Park (C Park) on the content of sanitary and similar services in the B Park (C Park), and worked on January 14, 2013 to June 14, 2013.

B. On July 15, 2013, the Plaintiff filed an application with the Defendant for recognition of eligibility for employment examination on the ground that the instant employment contract expired, and the Defendant issued a certificate of eligibility for employment insurance with the content that recognizes the following eligibility for employment insurance pursuant to Article 62(1) of the Enforcement Decree of the Employment Insurance Act on July 29, 2013 (hereinafter “instant disposition”).

Name of beneficiary certificate of employment insurance (Evidence B No. 7): The first unemployment recognition date: July 29, 2013; the expiration date of the fixed payment days: December 18, 2013: 150 days; the daily amount of job-seeking benefits: 21,870 won.

C. The Plaintiff dissatisfied with the request for review on September 11, 2013, but the employment insurance examiner decided to dismiss the request on September 10, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 6, 7, 8, Eul evidence Nos. 1, 6, and 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In full view of the legal provisions of the Employment Insurance Act, both of the daily wage (daily wage and daily wage) are based on the Minimum Wage Act, and the minimum daily wage under Article 45(4) of the same Act is based on the Minimum Wage Act. In full view of the fact that daily hours per hour under the Minimum Wage Act are eight hours, eight hours are recognized for an employee who has worked for not less than eight hours, and the amount of job-seeking benefits is set based on five hours, and thus unreasonable results are generated, the minimum daily wage amount should be calculated by the method x 8 hours and X90%, but the disposition of this case made by the Defendant on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

1) The main contents of the instant employment contract are as follows.

이 사건 근로계약서(갑 제2호증, 을 제1호증)1. 구미시에서 실시하는 2013년 1단계 공공근로사업 참여자의 근로조건은 아래와 같습니다.2. 사업(업무)내용 등 근로조건사업(업무)내용: 위생 및 유사서비스업근무기간: 2013. 1. 14.~6. 14.작업장소: B공원(C공원)임금 등 급여조건▶ 1일 임금 단가: 27,216원(일반 65세 이하 기준)▶ 월~금요일(또는 토요일) 개근시 주 1일(일요일) 유급휴가 부여► 1월간 계속 참여시 1일의 유급휴일 또는 1일분의 임금 추가 지급○ 근무시간▶ 화~금(또는 토요일), 1일 7시간(09:00~17:00)▶ 휴게시간: 12:00~13:00(1시간)

2) On the basis of the confirmation of employment status of the insured workers, average wage at the time of the last severance from employment related to recognition of the Plaintiff’s eligibility for employment insurance is 24,64.52 won/day as follows, and average contractual hours per day is 5 hours.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1, 9 evidence, Eul evidence 2 (including each number), the purport of the whole pleadings

D. Determination

1) Article 45(1) of the Employment Insurance Act provides that the daily wage which serves as the basis for calculating job-seeking benefits (hereinafter referred to as "daily wage") shall be the average wage calculated pursuant to Article 2(1)6 of the Labor Standards Act at the time of the most recent severance from employment related to recognition of eligibility for benefits under Article 43(1). Notwithstanding paragraphs (1) through (3), Article 45(4) of the same Act provides that the daily wage calculated pursuant to these provisions shall be the minimum daily wage if the daily wage is less than the minimum daily wage per day before severance from employment multiplied by the minimum wage per hour under the minimum wage law applicable at the time of severance from employment (hereinafter referred to as "minimum daily wage"), and Article 46(1) of the same Act provides that the minimum daily wage shall be the eligible recipient's daily wage multiplied by 50/100 (Article 45(1) through (3) and (5)), and that the minimum daily wage shall be the eligible recipient's daily wage calculated by 10/100 of the eligible recipient's daily wage.

Article 3(1) of the Regulations on the Calculation of Basic Daily Wage (hereinafter referred to as the "Regulation on Basic Daily Wage") provides that the number of hours per day prior to departure from employment under Article 45(4) of the Employment Insurance Act refers to the average number of hours per day prior to departure from employment means the number of hours per day per severance, and Article 45(2) provides that the average number of hours per day prior to departure from employment referred to in paragraph (1) shall be the prescribed number of hours if the number of hours per day is determined by the recipient’s number of hours per day, and if the prescribed number of hours is determined by the prescribed number of hours, the number of hours calculated by dividing the total number of hours

Meanwhile, Article 2(1)6 of the Labor Standards Act provides that "average wages refer to the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the date on which a cause for calculating the average wages occurred by the total number of days during the said three-month period." Article 50 and the main sentence of Article 69 of the Labor Standards Act or Article 46 of the Industrial Safety and Health Act provides that "regular working hours refer to working hours determined by the relevant worker and his/her employer within the scope of working hours under Article 50 and Article 50(1) of the Act

2) The following circumstances revealed pursuant to the above facts and relevant Acts and subordinate statutes, namely, ① Article 45(4) of the Employment Insurance Act provides that the minimum daily working hours shall be calculated by multiplying the minimum daily working hours per day before the separation by the minimum daily working hours; ② Article 2(1)7 of the Labor Standards Act provides that the prescribed working hours refer to the working hours between an employee and an employer within the statutory working hours; ③ Article 3(2) of the Regulations on Basic Wage Amount provides that the prescribed working hours shall be calculated by dividing the total working hours by the total number of hours during the pertinent period plus the hours treated as non-paid paid hours during the pertinent period; ④ The Plaintiff’s working hours under the instant labor contract are 4 days a week, 7 hours a day a week, 1 week a week a week a week a week a week a week a week, and thus, Article 3(2) of the Employment Insurance Act provides that the Plaintiff’s total working hours per day a week a week is 35 hours a week a week a week, 5 hours a week a week a week a week a week a week, 25 hours a week a week a week a week.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.