[Plaintiffs, Appellees] Plaintiff 1 and 3 others
[Defendant, Appellant] Postal Service Promotion Foundation (재단법인 우정사업진흥회), Litigation Attorney Hwang Mun-seong
[Judgment Below] Seoul High Court Decision 91Na51315 rendered on May 14, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning] The grounds of appeal are examined.
1. An employment contract that sets working conditions falling short of the standards prescribed by the Labor Standards Act (근로기준법) is void only with respect to that portion (Article 20 of the Labor Standards Act), and such working conditions falling short of the standards prescribed by the Labor Standards Act cannot be deemed valid merely because they are based on a collective agreement or have received the approval of the workers (see this Court's Decision 90Daka24496 rendered on December 21, 1990).
The court below found that the Defendant Foundation's rules of employment and the allowance payment regulations or wage agreement thereunder, which prescribe the method for calculating various allowances for overtime work, night work, and holiday work, etc. of its transportation employees, use as the base amount a sum equal to 30 to 40 percent of the salary amount according to each employee's pay grade based on rank, and provide that the overtime work allowance is to be calculated as [base amount × 1.5/184 × number of overtime working hours], the holiday work allowance as [base amount × 1.5/25 × number of holiday working days], and the night work allowance as [base amount × 0.5/184 × number of night working days]. The court below held that this method, unlike the method for calculating the various statutory allowances prescribed in Article 46 of the Labor Standards Act and Article 31, Paragraph 1 of its Enforcement Decree, does not use the ordinary wage as the base amount but instead uses only an amount equal to a certain percentage of the salary by pay grade, which is far less than the ordinary wage, as the base amount, and therefore falls short of the standards prescribed by the Labor Standards Act and is void to that extent. On this premise, the court below calculated the various allowances that the Defendant should pay to Plaintiff 1 and the non-party, who are the Defendant's transportation employees, not in accordance with the provisions of the aforementioned rules of employment, etc., but in accordance with the provisions of the Labor Standards Act, by calculating the hourly ordinary wage as stated in the judgment and using this as the base amount multiplied by the relevant number of working hours. Upon examination of the record, the above measure taken by the court below is deemed to be justified, and no illegality as argued in the grounds of appeal can be found therein.
Furthermore, the fact that the Defendant Foundation's rules of employment, etc. prescribe the method for calculating the various statutory allowances as described above does not immediately warrant the conclusion that the Defendant and the workers agreed that the prescribed monthly working hours would be 184 hours. Therefore, in calculating the hourly ordinary wage that forms the basis for calculating the various allowances in this case, the method of dividing the relevant monthly salary amount by 184, as argued in the grounds of appeal, cannot be permitted. This argument is without merit in its entirety.
2. "Working hours" under the Labor Standards Act refers to the time during which a worker provides labor under a labor contract under the direction and supervision of the employer. Even standby time, rest, or sleep time during which a worker is not actually engaged in work in the middle of working hours must naturally be included in working hours if such time is not guaranteed to the worker as break time for free use by the worker, but is in substance time during which the worker remains under the employer's direction and supervision.
According to the record, it is true that employees such as Plaintiff 1, who are engaged in driving duties for the Defendant Foundation's postal transport vehicles, have from time to time taken rest such as sleeping or eating meals while working under an alternating-day work schedule. However, it can be seen that this occurred only intermittently during gaps in time while the employees were, from the time they clocked in at a fixed hour until they clocked out, at all times on standby within the workplace for the provision of labor such as driving duties, and that this was by no means a case where a fixed sleep time or rest time was guaranteed such that the employees were freed from the Defendant Foundation's direction and supervision and used such time as free break time.
Therefore, the measure taken by the court below in calculating the number of overtime working hours and night working hours for the purpose of computing the various statutory allowances in this case, by including all such sleep or rest time in working hours without excluding it, is also correct, and there is no illegality therein such as insufficient deliberation or misapprehension of the rules of evidence resulting in a mistaken finding of fact, as argued in the grounds of appeal. This argument is also without merit.
3. Furthermore, the argument in the grounds of appeal, in essence, is that although Plaintiff 1 retired on April 18, 1989, he received the full amount of the April salary pursuant to the Defendant Foundation's rules of employment and wage agreement, which provide that upon retirement, the full compensation for the relevant month shall be paid; therefore, in calculating the average wage that forms the basis for computing said Plaintiff's retirement allowance, the portion of the April salary corresponding to the period during which he did not actually work (13 days) should be calculated on a pro rata daily basis and deducted, with only the remaining amount to be included in the wages for the three months prior to retirement.
However, it is clear that the April salary received by said Plaintiff was paid solely as wages for work performed up to April 17, 1989, and cannot by any means be regarded as having the character of compensation premised on continued work until the 30th of that month. Therefore, it is appropriate that the entire amount of said salary be included in the total amount of wages paid to said Plaintiff during the three months prior to the date of retirement, and that the average wage be calculated on that basis. The judgment of the court below, which is to the same effect, is also correct, and the argument asserting a misapprehension of the law from the opposite viewpoint cannot be accepted.
4. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Park Woo-dong (Presiding Justice), Kim Sang-won, Yoon Young-cheol (Justice in Charge), Park Man-ho