포괄임금 약정의 효력과 문제점 -대판 2010. 5. 13, 2008다6052를 중심으로-

The court’s precedents define comprehensive wage scheme as wage payment contract under which: (a) there is no base salary set in advance while monthly or daily wages including statutory allowances are determined; or (b) certain sum is paid as statutory allowance, without any distinction and irrespective of the number of hours worked, while setting the base wage in advance. The Court recently ruled that comprehensive wage scheme shall be applied only when it is difficult to calculate the number of working hours considering the monitoring practice, intermittent work process, working hours, or types of works and duties; and that unless special circumstances require otherwise, comprehensive wage scheme is inapplicable if it is not difficult to determine the number of working hours. Many employers are applying the comprehensive wage scheme even in cases where it is not difficult to determine the hours of labor their employees work. However, in such cases, there is a risk that the employers will be responsible for payment of the difference between the amount actually paid to under the comprehensive wage scheme and the statutory allowance required under the Labor Standards Act. Comprehensive wage scheme should only be applied to cases where employees mainly work outside of the workplace, where employees have discretion on their working hours, regarding certain surveillance and intermittent work approved by the Minister of Employment and Labor under Article 63 of the Labor Standards Act or management and supervising work. If the comprehensive wage scheme is prohibited from being applied to any task, the employer would be obliged to accept claim for the difference between the statutory allowance under the Labor Standards Act and the amount actually paid, without regard to any private contracts stipulating application of the comprehensive wage scheme.