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Suggestions for Improvement of the legal issues regarding the Double Payment of Allowances for Holiday Work and Overtime Work on Holidays

  • DONG-A LAW REVIEW
  • 2014, (65), pp.615-648
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Lee Seung-Gil 1,  Kim, Jun-Keun 1

1아주대학교

Accredited

ABSTRACT

(1) When holiday work and overtime work overlap, whether the employer is obligated to pay double allowances for overtime and holiday work is a paramount question. Holiday work should be paid only for work on holidays, not as an overtime work allowance. As working hours on holidays and overtime are all related to hours worked outside of the standard legal working hours, both types of work hours fall under the same category. This means that double payment should not be required for overlapped working hours. Therefore, for example, work on a statutory holiday is not included as part of the standard legal working hours, which means that such work shall not also be calculated as overtime work. (2) Some recent judicial rulings by regional courts declared that overtime work shall include holiday work, to which scholars' opinions are divided, both positively and negatively. However, since the time when the Labor Standards Act was originally enforced, the long-standing practice has been that holiday work is not included in overtime work. Furthermore, the Supreme Court ruled in 1991 that when holiday work and overtime work overlapped, overtime should not be paid in addition to the holiday work allowance. Accordingly, as regional courts have found against the Supreme Court's ruling, it has become necessary to take this case once again to the Supreme Court, where all Supreme Court judges can make a decision on the issue. Also, it will be necessary to revise the working hours system for future operations. (3) This thesis paper will look into the legal background of overtime work, previous Supreme Court rulings and Labor Ministry guidelines regarding 'whether holiday work shall include overtime work' (II). Controversial judicial rulings by regional courts will be dealt with by examining the contents of the rulings (III). In addition, legislative trends and the opinions of academic and labor-management groups will be considered (IV). Additionally, I would like to make a few suggestions relating to future holiday work (V). Finally, the conclusion section will contain the summary of the thesis.

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