(영문) 대법원 2018.8.1.선고 2014다226659 판결

(1) Wages, regardless of whether or not an employee has provided a contractual work, which are agreed to be paid only to an employee in the office at a certain time such as the payment date, etc., are qualified to be paid the said employee’s work at that specified time. Such wages are not paid to a person who is not employed at that specified time, while it is generally paid to a person who is employed at that specified time without asking the details of his/her labor. If wages are paid under such conditions, it is difficult to deem that the employee has the nature of the so-called “contractual work”, and even if the employee retires from office before the arrival of the specified time, it is unclear whether the payment conditions were fulfilled at the time of providing the extended, night, or holiday work on a voluntary date, and thus, it is difficult to deem that the employee lacks fixedness (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

(2) The court below rejected the Defendant’s assertion that the Defendant’s payment of weather allowances, good attendance allowances, physical training expenses, and holiday leave expenses is not included in ordinary wages due to lack of fixedness in accordance with the above legal principles. However, the lower court determined that the said weather allowances, etc. were not a payment condition at the time of payment, but a fixed wage paid periodically and uniformly in return for work, and included in ordinary wages.

(3) Examining the record in accordance with the foregoing legal doctrine, the lower court’s conclusion that rejected the Defendant’s assertion is justifiable. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on ordinary wages.

2. Payment of both premium pay for holiday work and premium pay for overtime 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, if the work constitutes overtime work and at the same time, if the work constitutes holiday work, it should be calculated by adding 50% of the ordinary wage to the said hours.

(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).

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 on the payment of respective premium pay based on holiday work and overtime work under Article 56 of the former Labor Standards Act.

3. Conclusion

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