[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Republic of Korea
[Judgment Below] Seoul High Court Decision 90Na25425 rendered October 19, 1990
[Order]
The part of the judgment below against the Plaintiff is reversed.
This part of the case is remanded to the Seoul High Court.
[Reasoning]
1. The court below found the following facts: that the Plaintiff was hired on August 1, 1961 as an employed maintenance worker at the Daejeon Railway Rolling Stock Maintenance Depot of the Korea National Railroad Administration (철도청), and worked as a boiler operator in the boiler room, performing "one-day-and-night alternating shift work" (working 24 hours continuously on alternating days) until his retirement on June 29, 1988; that according to the collective bargaining agreement (단체협약) concluded between the Korea National Railroad Administration and the National Railway Workers' Union, the holidays for maintenance workers such as the Plaintiff were designated as the weekly rest day, national holidays (Independence Movement Day, Constitution Day, Liberation Day, National Foundation Day), New Year holidays (January 1, 2, and 3), Lunar New Year's Day (lunar January 1), Labor Day, Arbor Day, Children's Day, Buddha's Birthday, Memorial Day, Chuseok, Armed Forces Day, Hangeul Day, Christmas, and other days designated from time to time by the government; that between June 1986 and June 1988, the Plaintiff worked on the number of days listed in item (ga) of the attached list as "weekly rest days" and on the number of days listed in item (na) as "statutory holidays" (holidays designated as paid holidays under the collective bargaining agreement, other than the weekly rest day); and that the Defendant paid holiday work allowance for work on statutory holidays, calculated by multiplying the daily rate set according to the maintenance worker's grade by the number of days worked on holidays.
Based on these findings, the court below held as follows: the Plaintiff claims payment of holiday work allowance as provided under the Labor Standards Act (근로기준법) on the ground that he performed holiday work as prescribed; however, "holiday work" under the Labor Standards Act refers to work performed on the weekly rest day prescribed in Article 45 of the Labor Standards Act, and the Act provides for additional wages to be paid only for work performed on such weekly rest days. The purpose of the Labor Standards Act's provision requiring the implementation of a weekly rest day is based on the necessity that, in order to enable recovery from the fatigue of continuous labor and to guarantee the worker's cultural life, the worker must have at least one day of rest per week. National holidays, statutory public holidays, and other holidays designated by collective bargaining agreement, whose institutional purpose differs from that of the weekly rest day under the Labor Standards Act, are matters as to whether rest was actually taken on such days and how wages for work performed on such rest days are to be paid; these matters are not directly regulated by the Labor Standards Act and must instead be determined by agreement between labor and management. According to the Railway Rolling Stock Maintenance Depot Employee Regulations (철도차량정비창직원규정) applicable to maintenance workers such as the Plaintiff, when a worker on the one-day-and-night alternating shift system works on a statutory public holiday, etc., a holiday work allowance calculated according to the prescribed rate table is to be paid for each day worked; however, no separate provision was made regarding payment of holiday work allowance for work on the weekly rest day, due to the nature of the one-day-and-night alternating shift system. According to the contents of each pay statement (Exhibits 1 through 3) submitted by the Plaintiff in support of his claim that he performed holiday work, and in light of the overall purport of the pleadings, it is clear that the days of holiday work asserted by the Plaintiff all refer to work performed on statutory public holidays, etc., rather than on the weekly rest day. Furthermore, since the Plaintiff himself acknowledges having already received from the Defendant the amount calculated according to the prescribed rate table as holiday work allowance, the court below determined that the Plaintiff's claim in this respect was without merit.
2. Determination on the first ground of appeal.
However, according to the record, it is clear that the Plaintiff asserts as follows: that he actually performed work between June 1986 and June 1988 on the number of days listed in item (ga) of the above list as weekly rest days and on the number of days listed in item (na) as statutory holidays (holidays designated as such under the collective bargaining agreement and the employment rules, totaling 53 days and 15 days respectively); however, for convenience of pleading and proof, he treats himself as having worked only on the number of holidays (totaling 34 days, as listed in item (da) of the above list) which the Defendant itself acknowledged as days on which the Plaintiff performed holiday work, based on Exhibits 1-1 through 1-7, 2-1 through 2-12, and 3-1 through 3-6 (monthly pay statements prepared by the Defendant itself calculating the salary and wages to be paid to the Plaintiff); and that he claims payment of the difference between the wages that the Defendant should have paid, with the additional amount required under Article 46 of the Labor Standards Act for such holiday work, and the wages actually paid.
Moreover, even according to the facts as found by the court below, since the number of days (34 days) listed in item (da), on which the Plaintiff claims to have performed holiday work, exceeds the number of days (15 days) listed in item (na), which the court below found the Plaintiff to have worked on statutory holidays, it can only be concluded that, with respect to the number of days obtained by subtracting the number of days in item (na) from the number of days in item (da) (19 days), the Plaintiff is asserting that he performed work on the weekly rest day rather than on a statutory holiday. Nevertheless, the court below, apparently due to a misunderstanding of the Plaintiff's assertion, erroneously determined that all the days on which the Plaintiff claims to have performed holiday work clearly refer to work performed on statutory public holidays, etc., rather than on the weekly rest day. In this respect, the judgment below cannot but be found to be unlawful for failing to properly conduct the examination of evidence or for containing contradictions in its reasoning, and it is clear that such unlawfulness affected the judgment. Accordingly, the argument pointing out this error has merit.
3. Determination on the second ground of appeal.
Article 46 of the Labor Standards Act provides that "an employer shall pay an additional amount of not less than 50/100 of the ordinary wage for overtime work (work in excess of the hours extended under the provisions of Articles 42 and 43), night work (work performed between 10:00 p.m. and 6:00 a.m.), or holiday work." Considering that this provision does not state "holiday work under Article 45" but simply "holiday work," and that it provides for holiday work together with overtime work and night work, it is to be interpreted not merely as intended to maintain the principle of the weekly rest day system under Article 45, but also as reflecting consideration of the fact that, where an employee is unavoidably required by the employer's necessity to work on a day which, although not the weekly rest day, is designated as a holiday under the collective bargaining agreement or employment rules, and which both the employer and the employee recognize as a day on which the employee has no duty to work, greater compensation should be paid than for work performed on a day on which the employee has a duty to work. Accordingly, it is appropriate to interpret "holiday work," for which an additional amount of not less than 50/100 of the ordinary wage must be paid as holiday work allowance under Article 46 of the Labor Standards Act, as referring not only to work on the weekly rest day under Article 45 but also to work on statutory public holidays, etc., designated as holidays by collective bargaining agreement or employment rules.
Therefore, the judgment below, which took a different view, cannot but be found to be unlawful for having misapprehended the legal principles concerning holiday work under Article 46 of the Labor Standards Act, and it is clear that such unlawfulness affected the judgment. Accordingly, the argument pointing out this error also has merit.
4. Therefore, the part of the judgment below against the Plaintiff is reversed, and this part of the case is remanded to the court below for further examination and determination. This judgment is rendered as stated in the Order, the opinions of the Justices concerned being unanimous.
Justice Yoon Kwan (Presiding Justice), Choi Jae-ho, Kim Ju-han, Kim Yong-jun