(영문) 서울행정법원 2015.9.11. 선고 2015구합60273 판결

On January 19, 2015, the Defendant revoked the partial revocation of the Defendant’s approval of exemption from application to the Plaintiff’s surveillance employee.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company established on March 20, 201 for the purpose of the general facilities management business for buildings, etc., and employs approximately 460 full-time workers of a large amount of 460 persons. As part of the implementation of the business, the Plaintiff is performing the management business of building B buildings on the ground outside Geumcheon-gu Seoul Metropolitan Government (hereinafter “instant building”).

B. On July 2012, the Plaintiff applied for approval of exclusion from the application of the provisions on working hours, recess and holidays stipulated in Chapters IV and V of the Labor Standards Act to the Defendant on the ground that 57 workers from among his/her employees constitute “persons engaged in surveillance work” as stipulated in Article 63 subparag. 3 of the Labor Standards Act (hereinafter “monst workers”). The Defendant approved it on the 24th of the same month.

C. Accordingly, security guards employed by the Plaintiff and performed security duties in the instant building are also recognized as surveillance workers, and the provisions on working hours, rest hours, and holidays under the Labor Standards Act do not apply thereto.

D. However, on January 19, 2015, the Defendant: (a) investigated three security guards of the instant building, which was approved as a surveillance employee, as seen above, and subsequently, revoked the Plaintiff’s approval of surveillance workers (hereinafter “instant disposition”) on the ground that the said three security guards are concurrently engaged in the duty of managing vehicles and collecting parking fees in addition to pure security services, such as patrol and monitoring of visitors; (b) as such, the said three security guards cannot be deemed as a surveillance employee.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) While security guards working in the instant building are partially performing the duty of withdrawing and collecting parking fees at the parking lot settlement office, their form of work was limited to the form of temporary employment in the event employees working in the settlement office have hours of rest or dropout, and all of their duties are automated, and thus no special physical and mental tension is required. Therefore, the said security guards still carry out surveillance duties as their main duties, and are merely conducting the duty of collecting parking cars and parking fees. Ultimately, the said security guards do not constitute surveillance workers on the ground that they were in charge of the duty of collecting parking cars and parking fees at the settlement office.

2) Furthermore, according to the Defendant’s corrective order, the Plaintiff filed an application for approval of the security guards of the instant building as the surveillance worker, and the Defendant was aware that the said security guards are concurrently engaged in the business of parking lot settlement at the time when the said security guards were approved as the surveillance worker. The Defendant’s revocation of the approval of the surveillance worker of the said security guards, even without any change in special circumstances, violates the Plaintiff’s legitimate trust and violates the principle of trust protection.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) Type of work for security guards and employees of the Settlement Office of Parking Fees for the instant building

A) One employee shall work in the parking lot settlement office of the instant building. The above employee shall work in the parking lot settlement office from 8:00 to 17:00 a day, and Saturdays shall work from 9:00 p.m. to 12:00 p.m., and holidays and Sundays shall not work. The employee of the settlement office shall have a break time from 9:30 p.m. to 10:30 p.m., and from 15:30 to 16:00 p.m., and have a break time for one hour. (b) The employee of the parking lot settlement office shall deposit the collected parking fee in the bank account, prepare a visiting vehicle log, and obtain approval from the head of the management office of the instant building. The employee of the settlement office of the parking lot settlement office shall take advantage of the above work hours, and shall leave the parking lot within 10:00 p.m. to 20 minutes after 17:00 of the completion of the collection of charges in the parking lot settlement office.

C) The security guards of the instant building are in charge of the management of access vehicles and the collection of parking fees while working at the settlement office during the hours of recess hours, night hours, and time after leaving the settlement office.

D) Two security guards of the instant building shall work in one set and work at the same seven hours each other on the following day. Security guards shall work in the parking lot settlement office for the first floor, and the remaining one shall work at the parking lot settlement office for the first floor between eight and seven hours each time from the date on which they work at the parking lot settlement office staff at the parking lot settlement office for the first time to work at the parking lot settlement office for the last seven hours. They shall work at the parking lot settlement office for the first floor, one person shall monitor one person, one other, and one other, one person shall work at the parking lot for the rest and occupation of the settlement office for the rest of the employees of the settlement office for the settlement office. From 17:00 to 6:00 on the following day, one person who work in shift from the settlement office to the settlement office for the rest of the settlement office for the hours from the settlement of the settlement office for the first time to the settlement (from 20:6:6:66:00 to the rest of the settlement office).

E) Ultimately, two security guards work in the parking lot settlement office on a daily basis as the hours of 16 hours and 30 minutes in total (2 hours and 30 minutes in the number of employees in the settlement office + 14 hours in the number of hours in which employees in the settlement office did not work). As a result, one person’s average 8 hours and 15 minutes in the parking lot settlement office.

F) On holidays for which no employee at the parking lot settlement office is working, two security guards work in the parking lot settlement office alternately from 7:00 to 6:00 the following day, and thus, 11:30 minutes per security guard work at the settlement office.

2) General affairs of the parking fee settlement office for the instant building

A) The parking lot of the instant building is automatically aware of the vehicle number and time of access vehicles, and is equipped with a system to automatically settle the parking fee for vehicles travelling along that system (hereinafter referred to as “accuracy system”).

B) Vehicles entering the instant building are classified as follows:

A person shall be appointed.

C) The time for the occurrence of parking fees for the instant building is as follows.

A person shall be appointed.

d)in the case of regular and monthly parking vehicles (hereinafter referred to as “registered vehicles”), the parking lot breaker shall be automatically opened and closed by recognizing the automatic parking system's number. In the case of other vehicles (hereinafter referred to as “unregistered vehicles”), parking fees shall be calculated on the premise that the automated system is a general visiting vehicle. In the case of a vehicle with a certificate of visit, the personnel at the settlement office shall receive it and then record the vehicle number on the front page, and collect the parking fees settled by deducting the amount equivalent to the time of parking free of charge for each certificate of visit from the parking fee indicating the automation system.

E) According to the statement of C, who is an employee of the settlement office of the instant parking lot, there is a suspicion that the said parking lot automation system has been broken down. In that case, the registered vehicle naturally passes through, and the unregistered vehicle can not confirm the parking time, thereby passing through the certificate of visit, etc.

F) According to D’s statement that served as a security guard of the instant building, there is a case where the number of a vehicle from which a harsh parking lot automation system is withdrawn is not known. In such a case, the employee working at the settlement office check the vehicle number and input it into the computer and then settled parking fees accordingly.

G) From May 2014 to November 201, 2014, the rates of vehicles and parking fees collected during the night (08:0 to 17:0), night (17:00 to 22:0:0), late night and new walls (22:0 to 08:0 on the following day) are as follows:

A person shall be appointed.

(unit: %)

H) According to the statement of C, an employee of the parking lot settlement office, the instant parking lot is exempt from parking fees if it goes beyond his own fixed body, and it is possible for unregistered vehicles to leave the parking lot without paying parking fees or presenting a visiting certificate, etc.

[Based on recognition] Evidence Nos. 5, Evidence Nos. 7-1 through 7, Eul evidence Nos. 3, 4, 5, and 12 (including each number in the case of additional numbers), Eul evidence Nos. 8-2 and 5, Eul's testimony, and the purport of the whole pleadings

(d) Markets:

1) Whether security guards of the instant building are surveillance workers

A) "Monitoring worker" under Article 63 subparagraph 3 of the Labor Standards Act refers to a person engaged in surveillance duties, and is engaged in surveillance duties with less mental and physical distress (Article 10 (2) of the Enforcement Rule of the Elderly Standards Act), and Article 68 (1) of the Labor Inspector Work Regulations (Ordinance No. 127 of the Ministry of Employment and Labor), which provides for the criteria to determine whether a person is a surveillance worker, provides that "where a person works with less mental and physical distress, such as a level security guard's goods or coefficient security guards, etc." as the requirement that the person can be recognized as a surveillance worker: Provided, That the foregoing shall not apply where a high level of mental tension is required, although surveillance duties are performed but cannot be neglected to perform diving surveillance duties. 2: Where surveillance duties are performed for a short time due to the inherent or non-permanent reason: Provided, That the same shall not apply where a person concurrently holds other duties or concurrently holds other duties even if surveillance duties."

The reason why Article 63 of the Labor Standards Act excludes surveillance workers from the provisions on working hours, recess and holidays under the Labor Standards Act is that the form of work for surveillance workers is less physical and mental skin than average work. The proviso of Article 68(1)1 and the proviso of Article 68(2) of the Labor Inspector Work Regulations excludes a worker who conducts surveillance work, and a worker who conducts surveillance work repeatedly or concurrently, from the scope of surveillance work, even though he/she is engaged in surveillance work, it cannot be deemed that the mental and physical skin level of work due to surveillance work is less than that of other workers. In order to determine whether a worker can be seen as a surveillance worker under Article 63 subparag. 3 of the Labor Standards Act, the proviso of Article 68(1)1 and the proviso of Article 68(2) of the Labor Inspector Work Regulations can be considered as the basis for determining whether a worker is engaged in surveillance work. However, in a specific case, it is considered that the worker has to perform surveillance work or whether the worker has repeatedly been required to perform surveillance work.

B) In light of the following circumstances revealed by the instant case’s return to the health team, and by the facts acknowledged earlier, security guards of the instant building fall under the case’s repeated performance or concurrent holding of other services and thus, pursuant to the proviso to Article 68(1)2 of the Labor Inspector Management Regulations.

It should be excluded from the scope of surveillance workers.

(1) The security guards of the instant building shall work at the parking lot settlement office for every 8 hours and 15 minutes on a daily basis. However, since parking fees are not collected from self-employed to 7:00 a.m., the hours during which the security guards of the instant building are engaged in the business of managing vehicles entering the parking lot settlement office for 2 hours and 30 p.m. at the parking lot settlement office for 2 hours and 30 p.m., the hours during which the employees of the parking lot settlement office for 17 hours and 7 p.m. for 10 hours and 30 minutes from the time when the employees of the parking lot settlement office for 10 hours and 30 minutes from the time when they work at the parking lot settlement office for 10 hours and 30 minutes from the time when they work at the parking lot settlement office for 10 hours and 30 hours from the time when they work at the parking lot settlement office for 30 hours a.m., it is difficult to see that the above security guards are engaged in the business of 50 hours and 3 hours.

(2) The plaintiff asserts that the reason why security guards work in the parking lot settlement office is only for the timely response to any unexpected case that may arise at the parking lot entrance and parking lot entrance at night, and that the security guards are engaged in the management of some access vehicles and the collection of parking fees during the time when they work in the parking lot settlement office, and it cannot be deemed that they are "the repeated performance of other duties" or "the concurrent holding of offices beyond the incidental duties."

(3) As to the Plaintiff’s assertion, regarding the vehicle parking in the instant building, the rate of the rent generated during the hours of service at the parking lot settlement office, and the rate of the amount generated and the amount of the rent generated from the vehicle’s parking lot from May to November, 2014 to the vehicle’s parking lot of the instant building, the average dispatch rate of the vehicle during the hours from which the employees in the settlement office do not work is 41%, 38%, 44%, and 59%, while the employees in the parking lot settlement office work for the same period (from August to 17, 200), and the rate of the rent generated from the vehicle’s parking lot is 62%, and 56%, and the rate of the rent generated from the vehicle’s parking lot is not large. Moreover, in light of the fact that the employees in the parking lot settlement office are performing the settlement of the amount of the instant vehicle and the amount of the rent collected from each of the instant security guards working at the parking lot of this case during the same period.

(4) Next, we examine the strength of the vehicle management and the collection of parking fees conducted by the security guards. As seen earlier, the parking lot of the instant building does not perform duties, such as collecting parking fees separately from the self-employed to the 7th following day. If so, the security guards of the instant building were to handle 38% of the average daily parking fees of the instant building and 44% of the average daily parking fees for the period from 17:00 to 7:00 to 8:00 per annum. However, in light of the fact that the daily work for which the settlement office employees work (8:0 to 17:0) and the settlement amount are 56%, it is difficult to view the conclusion that the intensity of the vehicle management and the collection of parking fees conducted by the security guards is similar to or lower than the intensity of the employees in the settlement office. In light of the fact that the strength of the security guards’ duties in the settlement office is similar to the intensity of their vehicle management and the collection of parking fees.

(5) Meanwhile, the Plaintiff asserts to the effect that, on the grounds that most of the vehicle management and the collection of parking fees in the parking lot settlement office are automated, the duties themselves constitute physical and mental tensions, and therefore, even if security guards perform the above duties, they still constitute surveillance workers who are not subject to the provisions on working hours, rest, and holidays under the Labor Standards Act. However, according to the Plaintiff’s assertion, employees who work regularly in the above parking lot settlement office should be recognized as surveillance workers, and there is no indication that the Plaintiff is an employee who works regularly in the parking lot settlement office as surveillance workers (the Plaintiff asserts that the payment of parking fees or the collection of parking fees is different from the security guards because the employees who work regularly in the parking lot settlement office make a deposit in the bank, but it is considered that the above payment and the collection of parking fees are less than one hour per day, and it does not differ from the vehicle management and the vehicle management and the collection of parking fees and the security guards.)

Furthermore, even if the automation system automatically recorded the time and time of the vehicle entering and leaving the parking lot, and automatically calculated parking fees, security guards working at the parking lot settlement office are required to check whether the vehicle is a resident visiting vehicle, whether the vehicle is a shop visiting vehicle, whether it is a shop visiting vehicle, whether it is a shop visiting vehicle, whether it is a shop visiting vehicle, and whether it is a construction vehicle, and to deduct parking fees according to the visiting certificate, and to enter the vehicle number in the visiting certificate. In addition, if the automation system fails to properly recognize the vehicle number plate of the vehicle from the leaving, it is necessary to enter it on a manual (C refers to the case where the automation system is completely closed, and if it is not known that the vehicle number is not applied by physical or mental error, it can not be seen that it is not applied by the Labor Standards Act.

(6) As such, in light of the fact that the instant security guards are engaged in the vehicle management and the collection of parking fees for 5 hours and 15 minutes at the parking lot settlement office on the ordinary day, and the intensity of their duties is not different from the intensity of ordinary employees working at the parking lot settlement office, and that the vehicle management and the collection of parking fees are difficult to be considered as 'monical work', it shall be deemed that the vehicle management and the collection of parking fees for the security guards cannot be deemed as an incidental position to the monitoring duty, and that they have reached the level of 'Concurrent position'.

C) Considering that security guards employed by the instant building did not constitute surveillance workers under Article 63 subparag. 3 of the Labor Standards Act, the instant disposition revoking the approval of surveillance workers is lawful.

2) Whether the principle of protection of trust is violated

A) If the purport of the entire pleadings is added to the evidence Nos. 11 and 12, it is recognized that the representative director of the Plaintiff applied for approval of the security guards of the building of this case as a surveillance worker around July 2012, and that the security guards stated to the Defendant that they do not perform any other duty than surveillance duty. At the time of the above application, the Plaintiff submitted a "monst employee confirmation document" to the Defendant that the security guards do not continuously perform or concurrently hold any other duty except surveillance duty. As such, the Plaintiff made a false statement about the form of service for the security guards of the building of this case, thereby causing the Defendant to believe that the security guards do not perform any other duty than surveillance duty, and the Plaintiff trusted the Defendant’s disposition of approval of the surveillance worker on July 24, 2012. This is caused by the Plaintiff’s fault and thus, the protection of trust cannot be asserted.

B) Meanwhile, according to Gap evidence No. 12, the documents submitted by the plaintiff at the time of the application for the exemption from the above application from the application of the above, the security guards of the building of this case are recognized as having submitted the "place of security service" with the content that the security guards work in the parking lot settlement office around July 2012. However, this is not only the purport of the above security guards' place of service in the parking lot settlement office, but also the purport of the above security guards are the vehicle management and parking fee collection office in the parking lot settlement office. As seen earlier, the plaintiff explicitly stated that the above security guards do not perform the duty other than the surveillance service, so the security guards are merely performing the duty of monitoring at the parking lot settlement office, and such misunderstanding is attributable to the plaintiff's cause attributable to the plaintiff. Therefore, it cannot be accepted to assert that the plaintiff's reliance on the approval of the exemption from the application of surveillance workers on July 24, 2012.

3. Conclusion

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

Judges

Appointment of presiding judge or judge;

Judgment Notarial decoration

Support for Judges

Note tin

1) According to Article 63 subparag. 3 of the Labor Standards Act, the above recognition authority is the Minister of Employment and Labor, but Article 106 of the Labor Standards Act, and Article 59

Pursuant to subparagraph 5, the above approval authority was delegated to the heads of local employment and labor offices.

2) The amount of parking fees generated in proportion to the parking time that an unregistered vehicle parks. This means the reduction of parking fees by means of a certificate of visit, etc.

is the amount prior to such amount.

3) The amount reduced by means of a certificate of visit, etc. from parking fees generated during parking hours by an unregistered vehicle.

Attached Form

A person shall be appointed.

참조조문

유사 판례

-춘천지방법원 강릉지원 2019.08.29 2018노527

-수원지방법원 2020.6.11. 선고 2019구합63059 판결

-서울중앙지방법원 2015.04.15 2014고정5672

-서울행정법원 2015.09.11 2015구합60273

-서울중앙지방법원 2020.09.24 2020고정886