(영문) 대법원 2018.8.1.선고 2015다245640 판결

1. The court below rejected the Defendant’s assertion that the payment of the weather allowance, daily allowance, and physical training allowance is a ordinary wage with regular nature, daily rate, and fixedness, and that the said weather allowance, etc. cannot be included in the scope of ordinary wage due to lack of fixedness. Examining the records in accordance with the relevant legal principles, the court below did not err by misapprehending the legal principles on the requirements of ordinary wage, etc., thereby adversely affecting the conclusion of the judgment.

2. To ex officio determine the parts concerning the duplicate payment of premium pay and premium pay for holiday work.

(1) 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, the overtime work hours exceeding 40 hours a week should be paid in duplicate even during the holiday work allowance and overtime work allowance.

In addition, the lower court determined that the Plaintiffs’ unpaid retirement allowances are included in the average wage for calculating holiday work allowances and overtime work allowances, which were calculated in duplicate, as seen above, in calculating unpaid retirement allowances among the Plaintiffs.

(2) 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);

Therefore, this part of the judgment of the court below is erroneous by misapprehending the meaning of "one week" as stipulated in Articles 50 and 53 of the former Labor Standards Act, and the legal principles on the payment of each additional wage for holiday work and overtime work, which affected the conclusion of the judgment.

3. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is 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.