(영문) 대법원 2019.2.28.선고 2016다30326 판결

The part of the judgment below against the plaintiffs and the plaintiffs (appointed parties) shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 by the Plaintiffs and the Plaintiff (Appointed Party)

A. Article 50(1) and (2) of the Labor Standards Act provides that working hours per week shall not exceed 40 hours, excluding recess hours, and working hours per day shall not exceed eight hours, excluding recess hours. In computing working hours pursuant to paragraphs (3) of the same Article, the waiting hours, etc. that an employee is under the employer’s direction and supervision for work are determined as working hours. Work hours refer to those hours for which an employee provides labor under the employer’s direction and supervision. Recess hours refer to those hours for which an employee is under the employer’s direction and supervision during working hours, which are discharged from the employer’s direction and supervision during working hours, and are free to use. Therefore, even if an employee was not actually engaged in work during working hours or waiting hours, such hours are not guaranteed free use by the employee, and are also included in working hours if the employee actually under the employer’s direction and supervision. Determination of whether working hours or waiting hours belong to a specific type of business or work, such as details of labor contracts or how to freely use the relevant employee’s work, details and degree of interference with the employer’s work.

B. Examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, it shall be deemed that the waiting time of the Plaintiffs, the Plaintiff (appointed parties) and the designated parties (hereinafter collectively referred to as “Plaintiffs”) waited after the bus operation was completed and before the operation thereof (hereinafter referred to as “the waiting time of the instant case”) included hours that do not constitute working hours. Therefore, the entire waiting time of the instant case cannot be deemed as working hours.

① Upon entering into an annual wage agreement, the Plaintiffs’ trade union and the Defendant agreed on the daily working hours by 14 hours and 30 minutes in addition to 6 hours and 30 minutes in the case of a worker working in a vehicle operating within a city on the basis of eight hours, and by 11 hours in addition to 3 hours in the case of a worker working in a vehicle operating in an external mobile area. This appears to have taken into account the fact that part of the waiting time in the instant case, other than the actual average bus operation hours per day, may constitute actual working hours.

② The Plaintiffs asserted that the entire waiting time of the instant case constitutes working hours since they performed duties such as vehicle inspection, cleaning, and fuel injection during the waiting time of the instant case, other than meal or rest. However, there is no evidence to deem that the Plaintiffs performed duties such as vehicle inspection, cleaning, and fuel in excess of the hours already reflected in working hours under the said wage agreement during the waiting time of the instant case.

③ There is no evidence to support the Defendant’s specific direction and supervision over the Plaintiffs during the waiting period of the instant case, and there is no provision to deem that labor contracts, rules of employment, collective agreements, etc. also have the Defendant’s right to command and supervise the Plaintiffs even during the waiting period of the instant case. Rather, the Defendant’s labor and management stated that the waiting period of the instant case can be freely used by workers while setting the waiting period at the time of the enactment of the labor-management agreement on March 5, 199. Even if the term of the said labor-management agreement was expired, as long as the collective agreement, etc. was not concluded to revise the labor-management agreement, the content of the labor-management agreement remains with the Plaintiffs

④ Unless there are exceptional cases where operating time should be changed due to the delay of operation due to road conditions, etc., the need of the Defendant to interfere with or supervise the use of waiting time of bus drivers under his/her jurisdiction was not significant.

⑤ Although the waiting time of the instant case was somewhat insufficient, there was no short time for bus drivers to set the bus departure time in advance on the bus list, and thus, it seems that there was no considerable difficulty for bus drivers to utilize the waiting time for rest. In fact, the bus drivers belonging to the Defendant appear to freely utilize most of the waiting time of the instant case, such as taking rest in a resting room or providing meals in a resting room, and there seems to have been a case of going out to view personal work. Accordingly, it is difficult for the lower court to accept that deeming the daily working hours of the instant collective agreement as the deemed working hours under Article 58 of the Labor Standards Act, on the grounds stated in its reasoning, deeming the waiting time of the instant collective agreement as working hours, and rejected the Plaintiffs’ claim for additional overtime allowances without deeming it as working hours. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the nature of working hours, etc., which affected the conclusion of the judgment, or by exceeding the bounds of the principle of free evaluation of evidence.

2. As to the grounds of appeal No. 2 by the plaintiffs and the plaintiffs (appointed parties)

A. When calculating an hourly ordinary wage as a monthly wage, the amount shall be calculated by dividing that monthly ordinary wage by the standard number of hours for calculation of the monthly ordinary wage (which means 12 hours multiplied by the average number of weeks per year during the standard number of hours for calculation of weekly ordinary wage) (Article 6(2)4 of the Enforcement Decree of the Labor Standards Act). Thus, in order to calculate that hourly ordinary wage, the ordinary wage as a monthly wage must be first determined. However, in cases where an employee receives a monthly wage or a monthly fixed allowance with the basic rate of pay as wages for agreed working hours in excess of the standard working hours under Article 50 of the Labor Standards Act, a fixed allowance paid in the form of the monthly wage or monthly ordinary wage shall not be deemed as ordinary wage, and it is difficult to determine the ordinary wage because it includes a wage for extension and night work under Article 55 of the Labor Standards Act and a fixed allowance for extension and night work under Article 56 of the Labor Standards Act, it shall be deemed that he/she worked for a paid holiday, and the aforementioned legal principle shall be applied by calculating the total amount of 10 months or night work hours.

B. Meanwhile, according to the reasoning of the judgment below, the court below accepted only the amount less than the Plaintiffs’ extension, night work allowance, holiday work allowance, holiday work allowance, holiday work overtime work allowance, and weekly work allowance, which are less than the amount actually paid by the Plaintiffs, by including the above two hours in calculating the standard number of monthly ordinary wages of each Plaintiffs including continuous service allowance, CCTV allowance, transportation expense, and work hours, and the standard number of monthly ordinary wage of the month, as seen earlier.

Ultimately, the lower court erred by misapprehending the legal doctrine on the calculation of ordinary wages, thereby adversely affecting the conclusion of the judgment. The grounds of appeal by the Plaintiffs and the Plaintiff (Appointed Party) assigning this error are with merit.

3. As to the Plaintiff (Appointed Party)’s ground of appeal No. 3, the lower court determined that the lower court did not constitute ordinary wages on the ground that the lower court paid only to workers employed on the payment date by mutual agreement between labor and management. In light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal,

4. Conclusion

Therefore, the part of the judgment below against the plaintiffs and the plaintiffs (appointed parties) shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.