시간급 통상임금 산정 시 가산율 및 주휴수당에 관한 쟁점

If the law stipulates, whether the additional rate should be considered when calculating the hourly rate of ordinary wage, and whether the monthly fixed allowance is already included in it, it should be calculated in accordance with the regulations. However, Korea's current Labor Standards Act and subordinate statutes did not clearly define the issues. In such cases, the court will have no choice but to make a judgment by considering the basic purpose of the Labor Standards Act on wages, the existence and content of the intention of the agreement between the parties, and the possibility of reaching the fairest conclusion between the parties of the dispute. This judgment(en banc Decision 2015Da73067) has a very significant implications as a leading case on it, and is expected to function as the most basic prior judgment in the event of a similar pattern of disputes in the future. However, looking at the target judgment in more detail, we find that there are logical problems. The court presupposes that the intention of the parties to be clearly identified through wage agreements and annexes signed between the parties is not yet in place. Despite the fact that the parties' intentions can be clearly confirmed through wage agreements agreed upon by both parties, the court judged that there was no intention of the party on this matter. The court seems to be the guardian of labor-related parties. The court's ruling is contrary to the party's stated intentions, and it is not consistent with the Korean Labor Standards Act's assessment of the value of overtime work, holiday work, and night work higher than the value of prescribed work, and the conclusion of the court's ruling is hardly reasonable. The court's ruling should be free of logical contradictions. And, if the party's intention is clear and unless the intention violates the mandatory provision, the court should respect that intention of the parties of collective agreement.