[Plaintiffs, Appellee and Appellant] Plaintiff 1 and 4 others (Attorneys Park In-je and 4 others for the Plaintiffs)
[Plaintiffs, Appellee] Plaintiff 6 and 14 others
[Defendant, Appellant and Appellee] Seoul Metropolitan Subway Corporation (Attorney Kwak Chang-uk for the Defendant)
[Judgment Below] Seoul High Court Decision 92Na52582 rendered on December 9, 1994
[Order]
The part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the Seoul High Court. The appeals by Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5 are all dismissed. The costs of the dismissed appeals are to be borne by the above Plaintiffs.
[Reasoning]
The grounds of appeal are examined.
1. Summary of the reasoning of the judgment below
A. The court below found the following facts based on the evidence presented.
(1) The Plaintiffs were appointed as security guards on request (청원경찰) of the Defendant between June 1, 1981 and February 16, 1987, and worked as such, and some of them were converted to station attendants on March 1, 1988 or December 1, 1989.
(2) The Defendant classifies its employees into general position, technical position, employed position, and temporary position, and has enacted employment rules (취업규칙) to govern the service of its employees; separately, it has enacted the Security Guard on Request Operation Regulations (청원경찰운영규정) to govern security guards on request, applying mutatis mutandis the provisions of the employment rules with respect to working hours, etc. According to these regulations, the actual working hours of regular workers, excluding rest time, are in principle 8 hours per day and 4 hours on Saturdays, while for special-duty workers, the daily working hours for those on special day-shift, rotating, or shift work are within 12 hours per day each, and for those on 24-hour rotating shifts, within 24 hours per day.
(3) The Defendant has established compensation regulations (보수규정) governing the payment of remuneration to its employees, but with respect to the payment of salary and various allowances to security guards on request, the Security Guard on Request Operation Regulations provide that payment shall be made in accordance with the Ministry of Home Affairs notification pursuant to Article 6(1)(1) of the Act on Security Guards on Request (청원경찰법) and Article 8 of its Enforcement Decree (같은법시행령). Among the standards for allowance payment, it is provided that overtime allowance shall be paid at 25% of ordinary wages in lieu of the compensation payment under Article 46 of the Labor Standards Act (근로기준법) to those who worked in excess of standard working hours; overtime allowance surcharge shall be paid at 13% of ordinary wages to those who worked night shifts 12 days or more per month, and at 6% of ordinary wages to those who worked night shifts 7 days or more but less than 12 days per month; and holiday work allowance shall be paid at 8% of ordinary wages to those who worked on holidays once or more per month.
(4) Accordingly, the Defendant divided security guards on request into the station duty team, headquarters and depot duty team, train mobile team, and track patrol team. The station duty team and headquarters and depot duty team worked on a 24-hour alternate-day basis from 09:00 to 09:00 the next day; the train mobile team worked every day from 10:00 to 20:00 (from 09:00 to 19:00 starting June 14, 1989); the track patrol team worked every day from 20:00 to 08:00 the next day until May 31, 1986, and thereafter from 20:00 to 06:00 until October 15, 1988, after which the track patrol team was abolished.
(5) In the station duty team, generally, of the 2 persons working per day, one was in charge of platform duty and train patrol, and the other was in charge of station patrol and standby, alternating every 2 hours, and they could take 2 rest periods of 2 hours each, one during non-night working hours and one during night working hours. During platform duty, they performed tasks such as guiding passengers boarding and alighting and controlling access to restricted areas; during station patrol duty, they patrolled the concourse, averaging 205 meters, once every hour for about 30 minutes, performing security and inspection of station facilities, stairs, connecting passageways, etc., and controlling street vendors, or protecting employees who transported cash to banks; during the remaining time, they could rest while writing duty logs and standing by in the security guard standby room or the station duty room. During the train suspension hours from 00:30 to 04:30, the platform duty personnel were in charge of inspecting and guarding the platform for abnormalities and recording the times track patrol personnel entered and exited the tracks, while the concourse duty personnel were in charge of patrolling, inspecting, and guarding the area around the station. The headquarters and depot duty team was divided into two groups alternating every 2 hours, with one group working and the other resting on bedding, etc., set up in the security guard standby room, with shift changes taking about 10 minutes; the main task during duty was security of the headquarters and depot. The train mobile team was in charge of maintaining order, such as cracking down on pickpockets, while patrolling platforms or inside trains. The track patrol team conducted train patrol from 20:00 to 24:00, rested from 24:00 to 01:00, and from 01:00 to 04:30 patrolled the relevant track section of about 6-10 km in pairs, controlling access by outsiders and checking for the presence of explosives, etc.; thereafter, until about 05:00, they organized equipment, wrote duty logs, and rested, then assembled at the relay station for roll call before finishing work at about 06:00 (before June 1, 1986, at about 08:00). Each of the above teams operated in principle on a rotating duty basis, and those who had worked in the station duty or train mobile team for 1 year and 6 months or more were changed, where possible, to headquarters and depot duty, while those who worked in the track patrol team were, after 3 months of duty, necessarily changed to station duty or headquarters and depot duty.
(6) The Plaintiffs, while working on a rotating basis among station duty, headquarters and depot duty, train mobile team duty, and track patrol team duty as described above, received, without any objection until around February 14, 1990, the date this lawsuit was filed, in addition to basic pay and subway duty allowance and other allowances, in the case of train mobile team duty, overtime allowance of 25% of ordinary wages and holiday work allowance of 8% of ordinary wages, totaling 33% in allowances; and in the case of station duty, headquarters and depot duty, and track patrol team duty, overtime allowance of 25% of ordinary wages, overtime allowance surcharge of 13% of ordinary wages, and holiday work allowance of 8% of ordinary wages, totaling 46% in allowances.
(7) Meanwhile, the Defendant's labor union is organized with about 5,000 members out of about 7,000 employees, excluding security guards on request whose collective action, etc. is restricted under the Security Guard on Request Operation Regulations. The Defendant and its labor union agreed, in the collective agreement of June 17, 1988, to pay an additional pay grade (grade 3, KRW 33,000) to employed position and technical position employees from the 1st of that month; in the collective agreement of October 5, 1988, to convert the subway duty allowance into basic pay from January 1, 1989; and in the collective agreement of November 4, 1989, to pay employees a safety service allowance of KRW 35,000 from October 1, 1989. However, the Defendant did not pay the above additional pay grade and safety service allowance to security guards on request, on the ground that security guards on request were not union members and that the above collective agreements' general binding force did not extend to them, and in paying bonuses or physical training expenses, did not include the subway duty allowance in the basic pay.
B. Based on the above findings of fact, the court below determined as follows: the Plaintiffs did not fall under mere watchman-type or intermittent workers, and thus the provisions of the Labor Standards Act concerning working hours, holidays, and rest periods applied to the Plaintiffs; the various allowances the Defendant paid to the Plaintiffs by comprehensive wage payment for overtime work, night work, and holiday work fell short of the amounts calculated under the Labor Standards Act, which was disadvantageous to the workers, and there was no evidence that a specific and explicit agreement had been reached between the Plaintiffs and Defendant concerning the various statutory allowances; therefore, the Defendant is obligated to pay the Plaintiffs the difference between the various allowances calculated under the Labor Standards Act and the various allowances paid by comprehensive wage payment. The court below also determined that security guards on request were not workers of the same kind as the Defendant Corporation's union members, and thus the collective agreements did not apply to the Plaintiffs, so the Plaintiffs could not claim the additional pay grade, safety service allowance, or additional bonus and physical training expenses resulting from the conversion of the subway duty allowance into basic pay as provided in the above collective agreements.
2. Judgment of this Court
A. As to the Defendant's first ground of appeal
"Watchman-type work" as prescribed in Article 49, Item 3 of the Labor Standards Act refers to work whose original duty is watching, and which normally involves little physical or mental tension. In cases where a worker falls under a watchman-type or intermittent worker and has obtained authorization from the Minister of Labor (under the current Labor Standards Act, approval from the Labor Relations Commission) for exclusion from the application of provisions concerning working hours, etc. under the Labor Standards Act, the provisions concerning working hours, rest, and holidays set forth in Chapters 4 and 5 of the Labor Standards Act do not apply (see this Court's Decisions 95Da36695 rendered on November 22, 1996, and 95Da32709 rendered on December 23, 1996, etc.).
In this case, if the facts are as found by the court below, station duty and headquarters and depot duty, whose main tasks are security and patrol, constitute a typical example of watchman-type work (moreover, since headquarters and depot duty personnel worked in 2-hour shifts, this also constitutes intermittent work). The fact that station duty personnel performed tasks such as guiding passengers boarding and alighting, controlling access to restricted areas, and cracking down on street vendors during the course of security and patrol duties does not mean that, in light of the nature of the work, it does not fall under watchman-type work involving a lower density or intensity of labor than ordinary work. Likewise, train mobile team duty and track patrol team duty, whose main task was also patrol, constitute watchman-type work, and the fact that they cracked down on pickpockets, etc. during patrol (according to the record, the authorized number of security guards on request was 628 before 1990 and 217 thereafter, while the annual number of criminal offense enforcement actions within the entire subway facilities between 1984 and 1991 was at most 394 and at least 127, which is less than an average of 1 case per security guard on request per year) or controlled access by outsiders within the tracks and checked for the presence of explosives, etc., does not mean that this does not constitute watchman-type work.
However, since there is no assertion or proof that the Defendant obtained authorization from the Minister of Labor for exclusion of security guards on request from the application of the provisions on working hours, etc. under the Labor Standards Act, the provisions of the Labor Standards Act concerning working hours, rest, and holidays apply to the Plaintiffs.
Accordingly, while the court below erred in determining that the duties performed by the Plaintiffs as security guards on request did not constitute watchman-type or intermittent work, its conclusion that the provisions of the Labor Standards Act concerning working hours, rest, and holidays apply to the Plaintiffs is correct, and there is no error of law affecting the judgment, such as misapprehension of the legal principles concerning watchman-type or intermittent work under Article 49, Item 3 of the Labor Standards Act. This ground of appeal is without merit.
B. As to the Defendant's second ground of appeal
Under Articles 22 and 46 through 48 of the Labor Standards Act, in principle, when an employer concludes a labor contract, the employer must determine a basic wage for the worker and, based thereon, add and pay various allowances such as overtime, holiday, and night work allowances. However, even if, taking into account the working hours, form of work, and nature of the duties, and for convenience of calculation and to promote employees' motivation to work, the parties concluded a wage payment contract under the so-called comprehensive wage system, with the worker's consent, under which the basic wage is not calculated in advance but instead the various allowances for overtime work, etc. are combined and set as a monthly salary or daily wage, or a fixed amount is paid monthly as various allowances, such a contract shall be valid if it is not disadvantageous to the worker in light of the collective agreement or employment rules, and is recognized as reasonable in light of all the circumstances (see this Court's Decisions 91Da30828 rendered on February 28, 1992, and 87Dakka474 rendered on August 18, 1987, etc.).
In this case, if the facts are as found by the court below, because of the special nature of the work form of security guards on request such as the Plaintiffs, whose main duty was security and patrol of subway station facilities, extended work, night work, and holiday work exceeding the standard working hours under the Labor Standards Act were naturally to be expected. Accordingly, the Defendant established provisions in the Security Guard on Request Operation Regulations concerning the working hours of special-duty workers as found by the court below and concerning the payment of a fixed monthly amount as various allowances for work exceeding the standard working hours under the Labor Standards Act, etc. Pursuant to these provisions, the Plaintiffs, having been appointed as security guards on request of the Defendant between June 1, 1981 and February 16, 1987, worked on a 24-hour alternate-day basis or under the special day-shift system, and received the above various allowances without any objection until around the time this lawsuit was filed. Moreover, in light of the Security Guard on Request Operation Regulations, which correspond to the employment rules, this cannot be said to be disadvantageous to the Plaintiffs, nor can it be said to be unreasonable in light of all the circumstances. Therefore, it must be found that a so-called comprehensive wage contract was concluded between the Plaintiffs and the Defendant, under which a fixed monthly amount was paid as various allowances for work exceeding the standard working hours, etc., and this comprehensive wage contract cannot be deemed invalid.
Accordingly, it must be found that the overtime allowance, overtime allowance surcharge, and holiday work allowance received by the Plaintiffs under the comprehensive wage system all included the overtime work allowance, night work allowance, and holiday work allowance provided for under the Labor Standards Act. Therefore, the court below's determination, in which it found the Plaintiffs' specific overtime working hours, etc. as stated in its reasoning, and ordered payment of the difference between the various allowances paid under the comprehensive wage system and the allowances calculated under the Labor Standards Act for the overtime work, etc. found by the court below, constitutes an error of law due to misapprehension of the legal principles concerning the comprehensive wage system. Therefore, this ground of appeal by the Defendant on this point has merit.
C. As to the third ground of appeal by Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5
"Workers of the same kind" who become subject to the application of a collective agreement pursuant to Article 37 of the Trade Union Act (노동조합법) refers to those for whom the application of the relevant collective agreement is anticipated under the provisions of that agreement (see this Court's Decisions 86Dakka2507 rendered on April 28, 1987, and 95Da39618 rendered on December 22, 1995, etc.).
In this case, if the facts are as found by the court below, since the above Plaintiffs' main duties were security and patrol, it cannot be said that their work content or form is the same as or similar to that of the Defendant's employed position and technical position employees who were subject to the June 17, 1988 collective agreement, or that of the Defendant's employees subject to the October 5, 1988 and November 4, 1989 collective agreements. Furthermore, since the above Plaintiffs were not only ineligible for union membership but also had their basic pay determined by the notification of the Ministry of Home Affairs, it cannot be said that the application of the above collective agreements was anticipated even for them. Therefore, the above Plaintiffs cannot be said to be workers of the same kind who become subject to the application of the above collective agreements pursuant to Article 37 of the Trade Union Act.
The determination of the court below, which is to the same effect, is proper, and there is no error of law due to misapprehension of the legal principles concerning the scope of application of the general binding force of collective agreements under Article 37 of the Trade Union Act, as alleged in the grounds of appeal. This ground of appeal is without merit.
3. Therefore, without judging the remaining grounds of appeal, the part of the judgment below against which the Defendant lost is reversed, and this part of the case is remanded to the court below; the appeals by Plaintiff 1, Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5 are all dismissed; and the costs of the dismissed appeals are to be borne by the above Plaintiffs, who lost. This Judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Song Jin-hun (Presiding Justice), Cheon Gyeong-song, Ji Chang-gwon (Justice in charge), Shin Seong-taek