(영문) 대법원 2019.10.17.선고 2015다213568 판결

1. Unlike the fact that a general night duty or day duty is mainly engaged in regular patrols, acceptance of telephone and documents, and waiting in preparation for other emergencies, if the contents and quality of the duty to be performed on a night-day basis are extended, or if the duty to be performed on a night-day basis are assessed to be the same as that of ordinary work, a night-time, extension, holiday allowance, etc. must be paid (see Supreme Court Decision 93Da46254 delivered on January 20, 1995, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Defendant is a company that performs facility management duties, such as inspection, driving, maintenance, etc. of the facilities of approximately 500 households, which is composed of two Dongs of the 500 households, the ping home, the sports center, etc., and the Plaintiff (designated parties; hereinafter “Plaintiff”) and the designated parties are workers who retired while serving in the Defendant’s facility team or electric team.

B. Of the employees belonging to the Defendant, the electric team conducted the inspection, maintenance, and repair of the electric facilities, such as C’s beacon lights, voltages, electric current system inspections, electric exits, stability devices, replacement or maintenance of strings, cable work, safety inspection, patrol, etc., and the equipment team conducted the inspection, maintenance, and repair of the equipment facilities, such as piping repair, replacement of strings, etc. However, if it is difficult for the Defendant to directly resolve the construction work or repair of the equipment facilities is in charge of the external company. In addition, the Defendant had an employee in charge of the string service to dispatch the equipment and electric facilities that can be immediately processed, such as repair, replacement, etc. of all kinds of equipment and electric facilities.

C. The Defendant had the employees of the equipment and the electricity team, who are not the employees in charge of the service, serve in the order of 4 major positions, namely, day duty, day duty, day duty, and secret duty. The Defendant had four employees of the total number of 4 employees (one person of the electricity team appointment, one person of the post office, one person of the facility team appointment, and one person of the post office).

D. The Defendant: 08:00 to 17:00 weekly work, and the employees of facilities or electricity teams who are not workers on duty have allocated and processed daily work to each worker on duty at the time of their attendance. The workers on duty confirmed the meters showing the status of the operation of facilities and equipment at the disaster prevention room or central surveillance room, and confirmed the meters indicating the status of the operation of facilities and equipment at the disaster prevention room or central surveillance room, and received the request from occupants, etc., and processed various affairs related to electrical and equipment, etc. upon the request for the placement service.

E. In addition, from 00 to 08:0 on the following day, the Defendant had workers on duty additionally perform duties such as confirmation of the meter board as above, receipt and handling of the request for petter service, and inspection and replacement of electric lights in South, North, and South, and North, and the machinery room and night patrol in addition to the duties of checking the meter board as above, and receipt and processing of request for petter service.

F. The work of a facility team that operates valves at each stage by washing the calendars and Greens of South and North Korea, and the equipment team that operates valves at each stage is capable of completing approximately 30 to 1 hour. These work and the work of checking and replacing lights of South and North women and women's house, etc. may be conducted after 00.

G. A worker on duty prepared a situation record and a management log (hereinafter referred to as a "day duty log") and recorded the work processed on that day. When comparing the work performance and the work performance details recorded in the reception log, all workers on duty did not enter all the work performed by the worker on duty in the reception log (as of April 2, 201, there are 13 handling work records in the reception log of Saturdays service, but there is no entry about the duty log on the same day).

H. From April 4, 2011 to April 15, 2011, comparing the number of requests for pet service on a daily basis, such as the number of requests for pet service on a daily basis, the number of requests for peting service on a daily basis, such as the number of requests for peting service on a daily basis, is neither reasonable nor significant. Furthermore, the number of requests for peting service on a daily basis is more than that of the number of requests for peting service on a daily basis.

(i) On-the-spot manager is deemed to have no person who directs and supervises workers on duty after he/she has retired at around 18:0, but on-the-job watch 21:00 and 06:00, respectively, the duty report was made.

3. Examining the following circumstances revealed in the above facts in light of the legal principles as seen earlier, there is a high room to view that the remaining hours of work except meals or water surface hours among the work on duty between the Plaintiff and the designated parties are the same as that of ordinary work in terms of its content and quality.

A. The business of checking meters at the disaster prevention room or central surveillance room, receiving and processing the request for the peting service, and patroling and checking the mechanical room and the electrical room is always carried out by the Defendant’s workers on duty or employees in exclusive charge of petter service even during the weekly working hours. In addition, these business are significantly related to the business of checking, maintaining, and repairing the equipment or the electrical team workers, other than workers on duty, as one of the business of checking, maintaining, and repairing the equipment or facilities of C.

B. The tasks of checking and replacing the station and green house in South and North Korea are required for C’s inspection, maintenance, and repair of electric power and equipment facilities. The mere fact that the tasks of checking and replacing the station and green house in South and North Korea are to be conducted after the completion of the business of the station and it cannot be deemed that the contents and contents of other tasks conducted during the week are different.

C. Although the request for a package service that is received during the hours of watchkeeping is somewhat smaller than the request received during the daytime, in light of the fact that employees in exclusive charge of the package service and workers on duty were engaged in the relevant duty during the night, it is difficult to view that the intensity of the performance of the package service during the hours of watchkeeping service is less than that of the week.

D. In addition, the duty to confirm the meter board in the disaster prevention office or the central surveillance office is deemed to be the duty that must be continued without interruption, and the station duties and greens work in the private house room requires an amount of 30 to 1 hour. In full view of the fact that at night patrol, in principle, the defendant himself/herself recognized that at night patrol two employees are in need of 30 to 30 minutes, it is difficult to view that the rest of the duty is guaranteed to the plaintiff or the designated person during the hours of the rest of the duty except for meal or sleep hours.

E. It is difficult to deem that such watchkeeping is completely deviating from the direction and supervision of the employer, as the Plaintiff and the designated parties form part of the work on duty set by the Defendant, and the work on duty is carried out two times on duty.

4. Nevertheless, the court below determined that the whole of the plaintiff and the designated parties on duty could not be evaluated as the same as that of ordinary work. In so doing, the court below erred by misapprehending the legal principles on the determination of on duty and ordinary work, and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.