[Plaintiff, Appellant]
[Defendant, Appellee] Korea Highway Corporation (한국도로공사)
[Judgment Below] Seoul High Court Decision 95Na4461, decided June 4, 1996
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
Upon review of the record, the following facts may be found: the Plaintiff joined the Defendant Corporation on March 15, 1979 as a security-position employee in a general position and worked there until retiring on December 31, 1991; the security position system was established at the Defendant Corporation in 1973, and from that time security-position employees worked on a 24-hour-per-day, alternate-day system, and the Plaintiff, knowing that security-position employees worked on a 24-hour-per-day, alternate-day system, joined the Corporation and, until his retirement, worked on a 24-hour alternate-day system in which he worked 24 hours from 09:00 to 09:00 the following day and then had the next 24 hours off; according to the Defendant Corporation's Rules of Employment (취업규칙) in effect from the time the Plaintiff joined, employees are divided, according to the nature of their duties, into special-duty employees working a three-shift or alternate-day system and other ordinary-duty employees, and as a general principle employees' working hours are set at 8 hours per day and 44 hours per week, but employees may be made to work up to 60 hours per week as necessary, the working hours of special-duty employees are to be separately determined by the president of the Corporation, and allowances are to be paid to employees for overtime, holiday, and night work in accordance with the Remuneration Regulations; the Defendant Corporation's security-position employees, paired with special-position security guards, etc., in teams of two, perform duties such as regular patrol of the expressway, handling of traffic accidents, imposition and collection of charges on parties responsible for causing traffic accidents and preparation of accident record cards, providing convenience to broken-down vehicles, and escorting restricted vehicles; each team on average manages 32.85 km of expressway, and where that section is patrolled at a speed of 50 km/h, one round trip takes an average of 90 minutes, and patrols are conducted six times per day; in addition, on average per day there are 0.34 cases of traffic accident handling and preparation of accident record cards, 0.48 cases of providing convenience to broken-down vehicles, 0.002 cases of escorting restricted vehicles, and 0.14 cases of imposition and collection of charges on responsible parties, so that the time required for the entire foregoing duties averages 10 hours and 12 minutes per day, and the Plaintiff's duties were equivalent to this; the Defendant Corporation, in 1973 when the security position was established, obtained authorization from the Minister of Labor to exclude the application of the provisions on working hours, holidays, and rest periods set forth in Chapters 4 and 5 of the Labor Standards Act (근로기준법) on the ground that the duties of alternate-day workers, including security-position employees, constituted monitoring or intermittent work, and thereafter renewed and obtained such authorization every year; on December 29, 1978, with respect to alternate-day workers such as security-position employees, the Defendant Corporation obtained the above authorization for the period from January 1, 1979 to December 31 of the same year, on the condition that night-work allowances be paid, and even after the Plaintiff joined the Corporation on March 15, 1979, the Defendant Corporation obtained such authorization for exclusion of application every year with respect to alternate-day workers including the Plaintiff (from 1988 onward, renewal of the authorization was not obtained because the effect of the previous authorization continued); the Defendant Corporation, while having the Plaintiff work the alternate-day system, did not pay separate overtime or holiday work allowances but paid only a night-work allowance equivalent to 7 hours per day, and from January 1, 1989 paid a night-work allowance equivalent to 8 hours per day, but did not pay overtime or holiday work allowances corresponding to actual work; thereafter, for purposes of raising wages, and irrespective of actual work performed, the Defendant Corporation additionally paid, from around 1990, an amount equivalent to 4 hours of overtime work per month, and from around 1991, an amount equivalent to 8 hours of night work per month.
If the facts are as stated above, then the Plaintiff, at the time of joining the Corporation, entered into an employment contract with the Defendant Corporation for a 24-hour-per-day, alternate-day work arrangement, and the duties performed by the Plaintiff—regular patrol of the expressway, handling of traffic accidents, imposition and collection of charges on parties responsible for causing traffic accidents and preparation of accident record cards, providing convenience to broken-down vehicles, and escorting restricted vehicles—constitute, in light of the content of such duties, monitoring work whose essential nature is monitoring and which, in its ordinary state, involves little physical or mental strain. Given that, in the case of such monitoring workers, where authorization has been obtained from the Minister of Labor under Article 49, Item 3 of the Labor Standards Act to exclude the application of the provisions on working hours, etc. under the Labor Standards Act, the provisions on working hours, holidays, and rest periods set forth in Chapters 4 and 5 of the same Act do not apply; and given that the Defendant Corporation's Rules of Employment divide employees into special-duty employees working a three-shift or alternate-day system and other ordinary-duty employees, the provision in the Defendant Corporation's Rules of Employment that, in principle, employees' working hours are 8 hours per day and 44 hours per week, and that allowances are to be paid pursuant to the Remuneration Regulations for overtime and holiday work, applies to ordinary-duty employees but is not a provision that applies to security-position employees such as the Plaintiff, who fall under monitoring/intermittent workers and for whom authorization has been obtained from the Minister of Labor under Article 49, Item 3 of the Labor Standards Act. Accordingly, even though the Plaintiff worked in excess of 8 hours per day and 44 hours per week under the 24-hour-per-day alternate-day system, the provisions of the Labor Standards Act or of the above Rules of Employment concerning overtime and holiday work cannot be applied thereto, and therefore the Plaintiff's claim against the Defendant Corporation for overtime and holiday work allowances, premised on the application of such provisions, as argued in the grounds of appeal, is without merit.
Furthermore, where, due to the nature of the duties, a worker falls under a monitoring/intermittent worker and authorization has been obtained from the Minister of Labor under Article 49, Item 3 of the Labor Standards Act (under the current Labor Standards Act, approval of the Labor Relations Commission), the provisions on working hours, holidays, and rest periods set forth in Chapters 4 and 5 of the same Act do not apply; contrary to the argument in the grounds of appeal, the consent of the labor union or the workers is not required for an application for such authorization of exclusion.
Moreover, as stated above, where the provisions on working hours, holidays, and rest periods set forth in Chapters 4 and 5 of the Labor Standards Act do not apply, the employer is, in principle, under no obligation to pay overtime and holiday work allowances to the worker; in such a case, it cannot be said that the wage agreement between the employer and the worker is a comprehensive wage agreement (포괄임금제) in which the base wage includes the above allowances, but it remains the case that the worker cannot claim separate overtime and holiday work allowances against the employer.
Accordingly, the conclusion of the court below rejecting the Plaintiff's claims for the remainder of overtime work allowances and holiday work allowances is correct, and there is no illegality therein, as pointed out in the grounds of appeal, such as insufficient deliberation, misapprehension of facts, or misapprehension of legal principles, that affected the judgment.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party, the Plaintiff; the opinions of the participating Justices being unanimous, it is so ordered as stated in the Order.
Justice Kim Hyung-sun (Presiding Justice), Park Man-ho (Justice in charge), Park Jun-seo, Lee Yong-hun