[Order]
The part of the lower court judgment against the Defendant concerning holiday allowance is reversed, and this part of the case is remanded to the Busan High Court. The Defendant's remaining appeal is dismissed.
[Reasoning]
1. Regarding the legal nature of the security guards exclusively assigned to overnight duty
In general, where the content of overnight duty work constitutes an extension of the originally regular work, and even more so where its content and quality are evaluated as equivalent to ordinary work, night and holiday work allowances, etc. must be paid for such overtime work (see Supreme Court Decision 93Da46254, decided January 20, 1995).
According to the record in this case, it can be seen that the Plaintiff (designated party) and the remaining designated parties (hereinafter referred to as "the Plaintiffs"), except for approximately one rest day per week absent special circumstances, exclusively performed overnight duty work every day—consisting of regular patrols to guard against fire, theft, and other accidents, handling of telephone calls and documents, and work liaison, etc.—from 18:00, the end of public officials' working hours, until 09:00 the following day, the start of public officials' working hours, during the summer season, and from 17:00 until 09:00 the following day during the winter season. In light of this form of work, the overnight duty work of the Plaintiffs must be evaluated, in terms of its content and quality, as ordinary duty work or ordinary labor. Therefore, in light of the purport of the provisions on night and holiday work allowances under the Labor Standards Act (근로기준법), it is proper that overtime work allowances be paid to the Plaintiffs. Furthermore, in light of this form of work of the Plaintiffs, the Plaintiffs are not only technical service public officials who are "persons who work only at night" or "persons who work on holidays" under the Local Public Officials' Allowance Regulations (지방공무원수당규정), but are also public officials for whom overtime work is institutionalized in nature under the Guidelines for Execution of the Special Account Budget for Education Expenditures. Accordingly, they fall under the category of persons entitled to receive overtime work allowances under the various statutes and regulations concerning allowances for local public officials. It is proper to interpret that "duty officers" who are excluded from payment of overtime work allowances under the budget execution guidelines refer only to duty officers for whom overnight duty is not their ordinary work, and therefore the Plaintiffs are not included in that category.
The lower court's judgment to the same effect is justified, and there is no error of misapprehension of the legal principles concerning the nature of duty work and the work of security guards exclusively assigned to overnight duty, as alleged in the grounds of appeal.
The argument in the grounds of appeal on this point is not accepted.
2. Regarding the legal nature of overtime work allowance
According to the Local Public Officials' Allowance Regulations, overtime work allowance is to be paid within the scope of the budget, and the aforementioned budget execution guidelines also stipulate matters such as the persons entitled to receive overtime work allowance, the scope of recognized overtime work, and the timing and method of payment of overtime work allowance. Therefore, it is clear that a budget corresponding to overtime work allowance has been appropriated for the Defendant. Accordingly, the Defendant's argument that, because security guards exclusively assigned to overnight duty such as the Plaintiffs are not classified as persons entitled to receive overtime work allowance under the budget execution guidelines, no overtime work allowance to be paid to the Plaintiffs has been appropriated in the Defendant's budget, and therefore such allowance cannot be paid, cannot be accepted.
Meanwhile, according to the record in this case, it is recognized that the Plaintiffs received money in the amount of KRW 5,000 per day under the name of duty allowance; however, this is money received under an extra-statutory name not provided for in the Local Public Officials' Allowance Regulations, and thus cannot be regarded as money paid as overtime work allowance to security guards, such as the Plaintiffs, whose exclusive overnight duty work constitutes their ordinary work. Nor does such circumstance result in the Plaintiffs losing their right to claim overtime work allowance.
The lower court's judgment to the same effect is justified, and it cannot be said that there is an error of misapprehension of the legal principles concerning the legal nature of overtime work allowance, as alleged in the grounds of appeal.
The argument in the grounds of appeal on this point is also not accepted.
3. Regarding holiday work allowance
The lower court determined that it was insufficient to recognize, as argued by the Defendant, that the Defendant had granted the Plaintiffs substitute rest days corresponding to the number of days of holiday work; that even if substitute rest days had been granted, such circumstance alone could not justify refusal to pay holiday work allowance; and further, that in this case, where the Plaintiffs' rest during the week, as designated by the Defendant, cannot be regarded as absence from work, there is no room for the issue of wage deduction for substitute rest days to arise.
However, where an ordinance enacted pursuant to delegation under higher statutes such as the Local Public Officials Act (지방공무원법) or a collective agreement, etc., contains provisions allowing a specified holiday to be treated as a working day with a substitute ordinary working day designated as a holiday instead, or even in the absence of such provisions, where the consent of the employee has been obtained, and the substitute holiday to be exchanged is specified and notified to the employee in advance, then, absent circumstances requiring otherwise, this constitutes a lawful substitution of holidays. In such a case, the original holiday becomes an ordinary working day, and work performed on that day becomes ordinary work rather than holiday work, and thus the employer bears no obligation to pay holiday work allowance to the employee.
Upon examining the record in this case, it is found that the Defendant's litigation representative submitted a brief (record pp. 70-71) before the court of first instance stating, in essence, that in consideration of the Plaintiffs' working conditions, the Defendant, pursuant to Articles 14 and 15 of the Service Regulations for Local Public Officials Affiliated with the Busan Metropolitan City Board of Education and the Superintendent of Education, and Article 4(3) of the Duty Work Rules for Elementary, Middle, and High Schools Affiliated with the Superintendent of Education of Busan Metropolitan City, etc., had designated one day per week as a rest day in lieu of holiday work for the Plaintiffs, and therefore holiday work allowance could not be paid to the Plaintiffs. Meanwhile, according to Exhibits Eul No. 3-1 through 3-20 (each a work status report, record pp. 83-101) submitted as evidence, it can be seen that the Plaintiffs took rest regularly on specific days of the week.
Therefore, the lower court should have examined whether the Plaintiffs' weekly rest satisfied the requirements for lawful substitution of holidays, and if it constituted a lawful substitution of holidays, should have determined the number of days of holiday work for which substitute holidays were not granted to the Plaintiffs and the corresponding amount of allowance. Nevertheless, in rejecting the Defendant's argument, the lower court failed to fully examine the matter, thereby misapprehending the legal principles concerning holiday work allowance, and this error affected the judgment. Accordingly, the argument in the grounds of appeal pointing out this error is justified, and it is accepted.
4. Conclusion
Therefore, the part of the lower court judgment against the Defendant concerning holiday allowance is reversed, and that part of the case is remanded to the Busan High Court, and the Defendant's remaining appeal is dismissed. This judgment is rendered as stated in the Order, with the unanimous agreement of the participating Justices.
Justice Kang Shin-wook (Presiding Justice), Cho Mu-je (Justice in charge), Lee Yong-woo, Lee Kang-kook