[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Dongnam Traffic Co., Ltd., Litigation Representative Attorney Choi Jang-seop
[Judgment Below] Seoul Civil District Court Decision 92Na27217 rendered on July 27, 1993
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
We examine the grounds of appeal.
1. The court below, based on the evidence cited therein, found the following facts: that the Plaintiff joined the Defendant company, which operates a citywide bus transportation business on four routes with approximately 80 buses, on July 1, 1985, and worked as the head of the general affairs department, whose main duties were personnel management of office staff and management of the office building, until his retirement on April 1, 1991; that during his employment, he performed overnight duty (宿直) approximately once every 7 to 8 days, for 14 hours and 30 minutes from 18:00, when normal working hours ended, until 08:30 the following day; and that he also performed daytime duty (日直) on Sundays and public holidays approximately once every 7 to 8 times, from 08:30 to 18:00; that executive staff members such as the Plaintiff, who performed overnight and daytime duty at the Defendant company, performed the following tasks during their duty hours on behalf of the representative director: supervising and controlling the operation of buses, ensuring that other workers did not disturb work order, directing maintenance of buses that had completed their runs, promptly responding to situations in the event of accidents or breakdowns of buses in operation so as not to disrupt bus operations, controlling parking order when buses that had completed their runs were parked within the company premises or on the road, supervising the accurate deposit of revenues arising from bus operations, and preventing fires by carefully inspecting the electrical facilities within the company; that workers performing overnight and daytime duty could not sleep during such duty; that executive staff members performing overnight duty generally performed tasks such as controlling parking order for buses that had completed their runs, supervising deposits, and directing maintenance until approximately 02:30, and then supervised the resumption of bus operations from approximately 04:30; that, on the other hand, executive staff members performing daytime duty continuously supervised and controlled bus operations throughout their duty, except for lunchtime and brief rest periods; and that, in addition, while the Plaintiff was employed at the Defendant company, he irregularly performed route guidance duty for one hour in the morning before normal working hours and two hours in the afternoon after normal working hours, and that such route guidance duty was work in which executive staff members, in accordance with the Defendant company's instructions, went directly to bus stops during commuting hours to adjust the spacing of bus dispatches for buses belonging to the Defendant company, to control disorder in operations such as passing without stopping or departing with doors open, to facilitate boarding convenience, and to control overcrowding. Upon comparing the relevant evidence set forth in the judgment below with the record, the fact-finding of the court below as set forth above is acceptable, and it cannot be said that the judgment below suffers from insufficient deliberation or misapprehension of facts in violation of the rules of evidence, as argued in the grounds of appeal.
2. Generally speaking, overnight and daytime duty (宿·日直) refers to standing by within a facility in preparation for periodic patrols, the handling of telephone calls and documents, and other emergencies, and since the intensity of the labor itself is low and it mostly constitutes monitoring or intermittent labor, such duties are conventionally not treated as normal duties, do not require a separate labor contract, and are to be performed as an obligation incidental to the original contract; accordingly, there is no need to pay wages equivalent to normal work, nor is it necessary to pay night, overtime, or holiday work allowances, and it has the characteristic that customarily only monetary payments in the nature of reimbursement of actual expenses are paid. However, where the overnight or daytime duty does not fall under such monitoring or intermittent duty, and where the content of the duties performed during such overnight or daytime duty is an extension of the original duties, or, further, where the content and quality thereof are to be evaluated as equivalent to ordinary work, night, overtime, and holiday work allowances, etc., must be paid for such excess work (see this Court's Decisions 90Daka13465, rendered December 26, 1990, and 91Da18248, rendered December 10, 1991, among others).
According to the facts legally established by the court below, although the Plaintiff's overnight and daytime duty work was not identical to the duties he ordinarily performed, it was substantially related to the managerial duties he ordinarily performed; moreover, the intensity or degree of tension of such work was not inferior to that of his ordinary duties, he was not entirely free from the constraints of duty hours, and he was not guaranteed sufficient sleep or rest time. In light of these circumstances, with respect to overnight duty, of the 14 hours and 30 minutes of work from 18:00 to 08:30 the following day, the 12 hours and 30 minutes of work excluding the 2 hours from approximately 02:30, when tasks such as supervising and controlling bus operations, controlling parking order, supervising deposits, and directing maintenance were completed, until approximately 04:30, when bus operations resumed, must be regarded, in terms of its content and quality, as equivalent to the pattern of ordinary work; and with respect to daytime duty, of the 9 hours and 30 minutes of work, approximately 8 hours of work excluding lunchtime and rest periods must likewise be regarded as equivalent to ordinary work. Accordingly, the corresponding night, overtime, and holiday work allowances must be paid for such work. The judgment below, having ruled to the same effect, is justified and acceptable, and it cannot be said that it errs in its understanding of the legal principles regarding overtime work, night work, and holiday work, as argued in the grounds of appeal.
3. In this case, where there is no clear dispute between the parties that the work performed by the Plaintiff in connection with route guidance duty was not from the outset stipulated as an obligation under the labor contract, and that such work exceeded the statutory standard working hours prescribed by the Labor Standards Act (근로기준법), unless there are special circumstances such as that the content or intensity of such work is markedly lower than, or entirely different in nature from, his ordinary duties, or that there was a separate agreement for the payment of a substantial allowance therefor, such work must be deemed to constitute overtime work under Article 46 of the Labor Standards Act, regardless of whether it is work ordinarily performed by the Plaintiff. According to the facts legally established by the court below, it cannot be said that the intensity of the labor involved in the above duties was lower than that of ordinary duties, or that it was of an entirely different nature from ordinary labor; accordingly, the above duties must be deemed to constitute overtime work for which an allowance is payable under Article 46 of the Labor Standards Act. The judgment of the court below, having ruled to the same effect, is justified, and it cannot be said that it errs in its understanding of the legal principles regarding overtime work.
4. Furthermore, the court below's determination that, even though the Defendant paid the Plaintiff 1,500 won per instance of daytime duty, 3,000 won per instance of overnight duty, and money or meal tickets equivalent to 1,500 won per hour for route guidance duty, and even though the Plaintiff received each of these amounts without any objection, this alone cannot be regarded as constituting an implied agreement not to claim the allowances for the aforementioned overtime work and holiday work, is justified, and it cannot be said that it errs in its understanding of the legal principles concerning the interpretation of declarations of intent, as argued in the grounds of appeal.
5. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Lee Yong-hun (Presiding Justice), Park Man-ho, Park Jun-seo (Justice in Charge), Kim Hyeong-seon