2014Da226666 Wages, etc.

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

Changwon-si

Busan High Court (Chowon) Decision 2013Na20871 Decided September 18, 2014

September 13, 2018

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the end-time allowance, the fixed-time allowance, the physical training expenses, and the holiday leave expenses

A. The court below rejected the Defendant’s assertion that the Defendant’s payment of the weather allowance, fixed-time allowance, physical training allowance, and holiday allowance is not included in ordinary wages due to lack of fixedness, on the ground that the Defendant’s payment of the weather allowance, etc. was made only to employees employed at a certain time or at a certain time, the aforementioned weather allowance, etc. was not included in ordinary wages, but is a fixed wage that is regularly and uniformly paid for work, and thus, it rejected the Defendant’s assertion.

B. In light of the relevant legal principles and records, the lower court’s conclusion rejecting the Defendant’s aforementioned assertion is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. As to the payment of premium pay for holiday work and premium pay for overtime work in duplicate

A. With respect to the plaintiffs' assertion that working hours on holidays should be paid in duplicate with 150% of the holiday work allowance and 50% of the overtime work allowance exceeding 40 hours a week, the lower court determined that, on the grounds stated in its reasoning, where the work constitutes overtime work and at the same time, where the work constitutes holiday work, it should be calculated by adding 50% of the ordinary wage to the said hours.

B. However, it is difficult to accept the above determination by the lower court for the following reasons.

The hours of holiday work under the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018; hereinafter “former Labor Standards Act”) shall be deemed not to be included in standard weekly working hours and weekly overtime working hours. As such, premium pay for holiday work and overtime work cannot be paid in duplicate (see Supreme Court en banc Decision 2011Da12391, Jun. 21, 2018).

Nevertheless, the lower court erred by misapprehending the meaning of “one week” as stipulated in Articles 50 and 53 of the former Labor Standards Act, and the legal doctrine regarding the payment of premium pay for holiday work and overtime work under Article 56 of the former Labor Standards Act. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won

Justices Kim Jong-il

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant