연장근로와 휴일근로의 관계― 근로시간단축과 관련하여 ― (The Relationship between the Extended Work and the Holiday Work)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 30권 / 77 ~ 99페이지
· 저자명 : 김희성

초록

A holiday defines for the day when the labor obligation is exempted, and the employee should be allowed for the average of one or more paid holiday per week. (Labor Standard Act Article 55). Also, each work plant can place a separate holiday plan. For example in the case where the 5-day work per week is set, holidays (such as Saturday) in addition to statutory holidays is generally recognized. In this case, the meaning of holiday work stipulated in the Article 56 of the Labor Standards Act should be narrowly interpreted to the workings during the paid holidays guaranteed by the law. In other word, this means to work during the statutory holiday (weekly holiday). There are thoughts that the pre-agreed two days holidays are feasible, from the opinion of providing two days holidays can occur based on the contract, even when the provision of the law states to provide only at least once a week of paid holiday. However the opinion that states that the holiday assured by the statutory law is once a week only and thus all other holidays should be seen as the non-statutory holidays is still persuasive. What the law assures is always the minimum and thus all other advancement should be by each party’s accord. Therefore, the legal fact that the Labor Standard Act provides the statutory obligation to employers to pay 50% premium wage should applied, as a principle, to only the statutory holidays. Whether to fix a premium wage to all other holidays can be agreed as a separate agreementin the employer-employee relation.
Since these holidays are specifically guaranteed by the law, unlike to the extended work, the work provided by the employees should be performed only in the exceptional cases based on the consent of the workers when there are specific, inevitable and reasonable needs. Therefore the legal requirement for a practical regulation of the holiday works which separates it from the extended works should be clearly fixed. Nevertheless, even when the holiday work is provided, the daily work hours is limited to 8 hours from the Labor Standards Act, paragraph 2 of Article 50, therefore the overtime rule in the Article 53 shall apply if exceed the general work hours.
In addition to the 8 hours of extended work beside the 52 hours of weekly work, 16 hours of extended work become possible in the companies where the two days holidays per week is set, if the weekly holiday terms were fixed by each party’s free accord. In this case the total weekly work hours can reach up to 68 hours.

영어초록

A holiday defines for the day when the labor obligation is exempted, and the employee should be allowed for the average of one or more paid holiday per week. (Labor Standard Act Article 55). Also, each work plant can place a separate holiday plan. For example in the case where the 5-day work per week is set, holidays (such as Saturday) in addition to statutory holidays is generally recognized. In this case, the meaning of holiday work stipulated in the Article 56 of the Labor Standards Act should be narrowly interpreted to the workings during the paid holidays guaranteed by the law. In other word, this means to work during the statutory holiday (weekly holiday). There are thoughts that the pre-agreed two days holidays are feasible, from the opinion of providing two days holidays can occur based on the contract, even when the provision of the law states to provide only at least once a week of paid holiday. However the opinion that states that the holiday assured by the statutory law is once a week only and thus all other holidays should be seen as the non-statutory holidays is still persuasive. What the law assures is always the minimum and thus all other advancement should be by each party’s accord. Therefore, the legal fact that the Labor Standard Act provides the statutory obligation to employers to pay 50% premium wage should applied, as a principle, to only the statutory holidays. Whether to fix a premium wage to all other holidays can be agreed as a separate agreementin the employer-employee relation.
Since these holidays are specifically guaranteed by the law, unlike to the extended work, the work provided by the employees should be performed only in the exceptional cases based on the consent of the workers when there are specific, inevitable and reasonable needs. Therefore the legal requirement for a practical regulation of the holiday works which separates it from the extended works should be clearly fixed. Nevertheless, even when the holiday work is provided, the daily work hours is limited to 8 hours from the Labor Standards Act, paragraph 2 of Article 50, therefore the overtime rule in the Article 53 shall apply if exceed the general work hours.
In addition to the 8 hours of extended work beside the 52 hours of weekly work, 16 hours of extended work become possible in the companies where the two days holidays per week is set, if the weekly holiday terms were fixed by each party’s free accord. In this case the total weekly work hours can reach up to 68 hours.

참고자료

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