선원법상 시간외근로수당 산정을 위한 月의 소정근로시간에 관한 연구

This paper intends to suggest a resolution of crucial issues through making interpretative study on the calculation of monthly standard hours under the Seafarers’ Act in relation to monthly ordinary wages which has recently been raised as a key issue. The main results of this study are as follows. First, the comprehensive wage system in which fixed amount of money is paid as overtime allowances under a collective bargaining agreement between social partners has been widely applied. However, it is considered that there have been many cases where the system has not been operated in a way to commensurate with its intent or purpose. It would not be acceptable to be valid if the fixed overtime hours are remarkably less than those of actual overtime working hours. Second, against the existing theory in which the deletion of the express provisions of a day off per week was regarded as elimination of paid day off having been granted to seafarers, the author considers that even if the express provisions are not provided in the Seafarers’ Act, it is necessary to reveal whether the day off per week granted to seafarers is paid or unpaid by supplementing the intent of the Seafarers’ Act through making interpretative study. Third, as a result of historical study on the Seafarers’ Act, a paid day off per week under the Labour Standard Act which was made applicable mutatis mutandis to seafarers by the Article 128 of the past Seafarers’ Act was deleted by the amendment to the Act in 1984 but it is resonable to say that the paid day off per week was impliedly remained and embodied in the amended Act since seafarers’ wages was not reduced under the then and thereafter Seafarers’ Act. Fourth, as a result of study on the system of 8 hours per day and 40 hours per week, 2 days off per week would be granted to the seafarers when they have worked 8 hours day from Monday to Friday. Of 2 days off per week, 1 day is paid and the rest day would be either paid or unpaid according to the contract concluded by both parties. In case of the Seafarers’ Act, it is resonable to say that Sunday as a public holiday is the paid day off under the Article 71 of the same Act and Saturday is the day off under the contract of both parties and should be regarded as unpaid day off unless they expressly concluded it as paid day off. Fifth, as a result of study on whether public holidays are paid or unpaid, one can say that it becomes apparent that the public holidays, etc. are not unpaid but paid days considering the fact that the relevant provisions stipulate the public holidays included in paid leave shall not be counted as used paid leave and be added up to the original paid leave and the total leave period shall be paid. Sixth, the Seafarers’ Act expressly stipulates that the monthly standard hours is monthly standard days times daily standard hours. Thus, monthly standard hours is weekly working days - 6 days[(40 hours week ÷ 8 hours day) + a day off per week] times the average number of weeks of 1 year(52.142) and then the value of this multiplication is to be divided by 12 months in which case the result is calculated as 26.07. Again if the value is to be multiplied by daily standard hours(8 hours) then about 209 hours can be obtained. It is hoped that this study would contribute to promote better understanding of seafarers, shipowners and Government about the Seafarers’ Act in relation to monthly ordinary wages and the comprehensive wage system which have recently been raised as major issues between social partners and moreover to help them to resolve the issues through compromising and negotiating between them.