휴일근로에 대한 시간외 근로의 중복 할증 여부에 대한 판례 고찰 (Case Reviews on How the Premium Pay Shall be Calculated When an Employee Worked Overtime Hours on a Holiday)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 13호 / 259 ~ 298페이지
· 저자명 : 조영길, 정희선

초록

Recently, it is becoming an issue whether each of the additional pay rates for overtime work and holiday work should be separately added to the employee’s normal rate in cases where overtime work and holiday work overlap and such holiday work exceeds the standard working hours specified in the Labor Standards Act (i.e. 40 hours per week). In particular, some of lower courts in Korea are delivering conflicting opinions on this matter and numerous cases are still pending before the Supreme Court awaiting its final decision.
However, in the Supreme Court ruling on Kangwon Industry Co., Ltd. case in 1991, the Court found that premium rate for holiday work only shall be applied in cases where holiday working hours are less than eight (8) hours unless they exceed the limit of standard working hours per week, meanwhile each of the additional premium rates for overtime work and holiday work will be added to the overtime working hours only, which exceed eight (8) hours (Supreme Court ruling on March 22, 1991: No.
90Da6545). Since such decision, the Supreme Court have applied this same legal standard in subsequent cases such as Pigeon Case in 1992 (No. 91Da14406) and Hyundai Motors Co., Ltd. Case in 2005 (No. 2004Da41217), and it held in the Pigeon Case that any overtime working hours on a holiday shall not be included in actual working hours, which determines the limit of legal standard working hours per week.
We agree and acknowledge the validity of Supreme Court’s decision that holiday working hours will not be included in calculating the limit of legal standard working hours per week and as long as such holiday working hours are less than eight (8) hours, additional allowance will not be paid for overtime work, but only for holiday work, taking into consideration of the following factors: (i) legislative intents of Labor Standards Act and its Enforcement Decree defining “one (1) week” as “mandatory work days”, (ii) at its legislation, legislators have determined that an additional allowance will not be paid for overtime work and holiday work in cases where holiday work after normal work on mandatory work day exceed the limit of legal standard working hours per week ; this clearly indicates that holiday work exceeding fortyeight (48) hours per week will not be considered as overtime work, (iii) long standing practice that additional allowances are not allowed in cases where overtime work and holiday work overlaps, (iv) comparative legal approach that Japan does not allow additional allowances in cases where overtime work and holiday work overlaps and (v) backgrounds of recent bills.
The Seoul High Court in its Street Cleaners in Seong-nam City Case have found that ever since the Labor Standard Acts have enacted, in light of the customary labor practices, additional allowance of 50% of ordinary wages will not be paid for overtime work and holiday work, but only for holiday work hours not exceeding eight (8) hours per day even if such holiday work was extended in cases the employee already exceeds the limit of legal standard working hours (Seoul High Court ruling on February 3, 2012: No 2010Na23410). We believe that this decision of lower court is not only consistent with the repeated views of the Supreme Court since 1991, but also is reasonable in terms of legislative intents of the Labor Standards Act and comparative legal approach on this matter.
However, there are increasingly large number of decisions from other lower courts that in cases where holiday work and overtime work overlap, an additional allowance shall be paid respectively ; Four (4) out of them were raised by Street Cleaners in Seong-nam, An-yang and Daegu against their respective local governments (Seoul High Court ruling on November 9: No. 2010Na50290 ; Seoul High Court ruling on November 9: No. 2010Na71280 ; Seoul High Court ruling on November 9: No.
2011Na85903 ; Daegu High Court ruling on May 31, 2012: 2011Na4408). We opine that these decisions from other lower courts are problematic in following reasons: (i) they are contrary to the legislative intents, longstanding notion and customary labor practices ; (ii) Japan does not recognize overlapping allowances for holiday work and overtime work under comparative law ; (iii) paid weekly holiday and high percentage of additional allowance rates are allowed in Korea under comparative law ; (iv) they are not complying with the precedent of Supreme Court Case in 1991 ; (v) legal stability will be in question by triggering numerous disputes over wages ; (vi) it may have dramatic economic blows to SMEs ; and (vii) the court may overstep the limit of interpretation of laws.
Given that other lower courts are delivering conflicting verdicts on this matter, regardless of precedents of the Supreme Court and this matter will have a great impact across the country, we believe that the Supreme Court needs to make an en banc decision on pending cases, and since it also contradicts the principle of good faith if the Court allows overlapping payment of additional allowances for holiday work and overtime work.

영어초록

Recently, it is becoming an issue whether each of the additional pay rates for overtime work and holiday work should be separately added to the employee’s normal rate in cases where overtime work and holiday work overlap and such holiday work exceeds the standard working hours specified in the Labor Standards Act (i.e. 40 hours per week). In particular, some of lower courts in Korea are delivering conflicting opinions on this matter and numerous cases are still pending before the Supreme Court awaiting its final decision.
However, in the Supreme Court ruling on Kangwon Industry Co., Ltd. case in 1991, the Court found that premium rate for holiday work only shall be applied in cases where holiday working hours are less than eight (8) hours unless they exceed the limit of standard working hours per week, meanwhile each of the additional premium rates for overtime work and holiday work will be added to the overtime working hours only, which exceed eight (8) hours (Supreme Court ruling on March 22, 1991: No.
90Da6545). Since such decision, the Supreme Court have applied this same legal standard in subsequent cases such as Pigeon Case in 1992 (No. 91Da14406) and Hyundai Motors Co., Ltd. Case in 2005 (No. 2004Da41217), and it held in the Pigeon Case that any overtime working hours on a holiday shall not be included in actual working hours, which determines the limit of legal standard working hours per week.
We agree and acknowledge the validity of Supreme Court’s decision that holiday working hours will not be included in calculating the limit of legal standard working hours per week and as long as such holiday working hours are less than eight (8) hours, additional allowance will not be paid for overtime work, but only for holiday work, taking into consideration of the following factors: (i) legislative intents of Labor Standards Act and its Enforcement Decree defining “one (1) week” as “mandatory work days”, (ii) at its legislation, legislators have determined that an additional allowance will not be paid for overtime work and holiday work in cases where holiday work after normal work on mandatory work day exceed the limit of legal standard working hours per week ; this clearly indicates that holiday work exceeding fortyeight (48) hours per week will not be considered as overtime work, (iii) long standing practice that additional allowances are not allowed in cases where overtime work and holiday work overlaps, (iv) comparative legal approach that Japan does not allow additional allowances in cases where overtime work and holiday work overlaps and (v) backgrounds of recent bills.
The Seoul High Court in its Street Cleaners in Seong-nam City Case have found that ever since the Labor Standard Acts have enacted, in light of the customary labor practices, additional allowance of 50% of ordinary wages will not be paid for overtime work and holiday work, but only for holiday work hours not exceeding eight (8) hours per day even if such holiday work was extended in cases the employee already exceeds the limit of legal standard working hours (Seoul High Court ruling on February 3, 2012: No 2010Na23410). We believe that this decision of lower court is not only consistent with the repeated views of the Supreme Court since 1991, but also is reasonable in terms of legislative intents of the Labor Standards Act and comparative legal approach on this matter.
However, there are increasingly large number of decisions from other lower courts that in cases where holiday work and overtime work overlap, an additional allowance shall be paid respectively ; Four (4) out of them were raised by Street Cleaners in Seong-nam, An-yang and Daegu against their respective local governments (Seoul High Court ruling on November 9: No. 2010Na50290 ; Seoul High Court ruling on November 9: No. 2010Na71280 ; Seoul High Court ruling on November 9: No.
2011Na85903 ; Daegu High Court ruling on May 31, 2012: 2011Na4408). We opine that these decisions from other lower courts are problematic in following reasons: (i) they are contrary to the legislative intents, longstanding notion and customary labor practices ; (ii) Japan does not recognize overlapping allowances for holiday work and overtime work under comparative law ; (iii) paid weekly holiday and high percentage of additional allowance rates are allowed in Korea under comparative law ; (iv) they are not complying with the precedent of Supreme Court Case in 1991 ; (v) legal stability will be in question by triggering numerous disputes over wages ; (vi) it may have dramatic economic blows to SMEs ; and (vii) the court may overstep the limit of interpretation of laws.
Given that other lower courts are delivering conflicting verdicts on this matter, regardless of precedents of the Supreme Court and this matter will have a great impact across the country, we believe that the Supreme Court needs to make an en banc decision on pending cases, and since it also contradicts the principle of good faith if the Court allows overlapping payment of additional allowances for holiday work and overtime work.

참고자료

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