(a) The separate determination of basic wages, and the effect other than a labor contract with the content that a certain amount is paid every month (effective);

(b) Claim for overtime work allowances by a person who is to do overtime work in principle;

(a) An employer shall determine the basic wages at the time of concluding a labor contract and pay various allowances for overtime work, night work, and holiday work, and the wages shall be calculated by adding up the basic wages and all the allowances incidental thereto, but even if a contract was concluded with the worker’s consent to pay a certain amount monthly allowance with the worker’s consent in consideration of working hours, the form of work, and the nature of work, etc., it shall not be null and void if there is no disadvantage to the worker and it is deemed reasonable in light of all circumstances.

B. The plaintiffs, who are drivers engaged in overtime work and holiday work in principle, cannot claim allowances under Article 46 of the Labor Standards Act which are entitled to claim overtime work, etc. because they are different from ordinary workers, shall be deemed to have committed unlawful acts by misapprehending the legal principles of the Labor Standards Act.

A. Articles 22, 46, and 47-2(b) of the Labor Standards Act and Articles 46 and 47-2(b) of the Labor Standards Act

Supreme Court Decision 80Da2384 Delivered on March 9, 1982

Plaintiff 1 and 2 others, Attorneys Choi Min-young, Counsel for the plaintiff-appellant

International Korea Transportation Corporation

Daegu High Court Decision 80Na679 delivered on November 21, 1980

The judgment of the court below is reversed, and the case concerning the claim for overtime work and holiday work allowance is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. On the first ground for appeal:

According to the daily records and the judgment of the court below, it is evident that the plaintiffs were employed by the defendant company as an employee for non-permanent work and non-permanent work and night work, and that the defendant company agreed to pay the plaintiffs food and accommodation expenses for non-permanent work under Article 46 of the Labor Standards Act, and that the non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, and non-permanent work, non-permanent work, non-permanent work, non-permanent work, and non-permanent work, non-permanent work, non-permanent work, non-permanent work, and non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, non-permanent work, and non-permanent work, non-permanent work, non-permanent work, non-permanent, non-permanent, non-permanent, non-permanent, non-permanent, non-permanent, non-permanent, non-permanent, non-permanent, non-permanent.

Therefore, it is clear that the part of the judgment of the court below concerning night work allowance and food and lodging expenses of the plaintiffs against the case where the lawsuit is not pending. Therefore, it is reasonable to discuss this part of the judgment (the plaintiff's claim for unpaid portion out of the basic wage added by the court below was omitted by the judgment of the court below, and this part of the case is still pending in the court below).

2. With respect to points 2, 3, and 4:

According to the reasoning of the judgment below, the court below acknowledged that the plaintiffs performed overtime work and holiday work as argued by the plaintiffs while working in the defendant company as Tex driver at the defendant company. However, considering the unique characteristics of driving work for continuous freight transportation, the actual working conditions of the plaintiffs such as Tex driver, etc. do not work long-ranges outside the workplace, such as naturally going through Busan and Seoul, and operation of other areas, etc., and therefore, the number of working hours is not fixed and the defendant company, which is the employer, cannot accurately understand the actual working hours of the plaintiffs. Thus, in concluding the labor contract in this case with the defendant company, the defendant company can automatically claim payment of overtime work and holiday work allowances in accordance with the above basic labor contract form such as overtime work hours, night work hours, etc., in light of such unique characteristics of work form that the plaintiffs should pay overtime work, night work hours, and holiday work hours, and if the defendant company paid overtime work allowances to other employees under the premise that the above basic labor contract is paid to the defendant company and other workers under the premise that the above labor contract is paid during overtime work hours and night work hours.

However, according to Articles 22 and 46 through 48, etc. of the Labor Standards Act, an employer shall specify wages, working hours, and other working conditions for workers at the time of concluding a labor contract, and wages shall be paid in addition to the basic wages, various allowances for overtime work, night and holiday work, etc. Thus, in principle, the basic wages shall be determined by a labor contract and the calculation of various allowances shall be made accordingly, and even if a contract was concluded with the worker’s consent taking into account the working hours, the form of work, and the nature of the work, etc., of the monthly specified amount as an above-mentioned allowance, if there is no disadvantage to the worker and it is deemed justifiable in light of all other circumstances (see Supreme Court Decision 80Da2384, Mar. 9, 1982).

In this case, according to the collective bargaining adjustment decision of Gap, who did not reject the decision by the court below, the minimum basic wages of at least 103,00 won per day, and at least 7,922 won per hour shall be paid for overtime work, and at least 742 won per hour shall be paid for overtime work. Thus, individual adjustment decision regarding overtime work allowances and holiday work allowances are different from the contents of labor contract between the plaintiffs and the defendant company recognized by the court below, and the contents of the decision below are clearly different from that of the above adjustment decision, and the defendant must claim overtime work and holiday work allowances based on the above adjustment decision of the Labor Standards Act, and the defendant should, in light of the unique nature of the plaintiffs' work form as a principle, claim that the plaintiffs should pay overtime work and holiday work allowances under the above adjustment decision of the Labor Standards Act as compensation for overtime work, etc., and the court below should have dismissed the plaintiffs' claim that the above adjustment decision did not have the effect of the above adjustment decision as to overtime work hours and overtime work allowances from time to time, etc.

Therefore, the judgment of the court below is reversed, and the part concerning the plaintiffs' overtime work allowances and holiday work allowances is remanded to the Daegu High Court which is the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Chang-chul (Presiding Justice)