근로시간의 산정이 어려운 사정이 없는 경우 포괄임금계약의 효력 - 대법원 2010. 5. 13. 선고 2008다6052 판결을 중심으로 -

The Korean Supreme Court has maintained the principle that the basic wage should be determined by the Labor Standards Act and legal allowances should be paid for any overtime works, nighttime works and holiday works calculated based on actual working hours but, at the same time, has admitted the effectiveness of a blanket wage system because such a contract cannot be nullified if it was concluded for the convenience of calculation and inspiring employees’ motivation to work in consideration of working hours, type of working, and natural of tasks and it has not brought any disadvantage to the worker and is considered valid in consideration of all circumstances. However, concerns have been raised about whether blanket wage contracts may be misused for employers to avoid their liabilities to pay legal allowance, and there have been confronting opinions on the effect of blanket wage contracts particularly when it is not difficult to calculate working hours due to the nature of tasks. Concerning this, the Korean Supreme Court recently decided that if it is not difficult to calculate working hours as in guarding and intermittent works a blanket wage contract is not allowable, and if a contract has been made based on the blanket wage system although there is no difficulty in calculating working hours and if the amount of fixed legal allowances included in the blanket wage are less than the amount of legal allowances calculated according to criteria defined in the Labor Standards Act the employer is obliged to pay the shortage to the worker. This decision is considered to suggest clear criteria on the scope and effect of the blanket wage system. This study purposed to review briefly legal issues such as the nature, scope and effect of the blanket wage system raised around judicial cases, and to explain the meanings and problems in subject decisions.