주휴수당의 존재에 대한 소고- 주휴수당의 폐지를 중심으로 -

Abstract

Since the Supreme Court abolished the theory of two-split wage characteristics in 1995, in fact the court has regarded only the exchange part paid for providing labors as wages but has not regarded the amount of money paid except such exchange part as wages. However, according to Labor Standards Act Article 55 and its Enforcement Ordinance Article 30, even though workers do not actually provide their labors, weekly holiday allowance shall be paid as they are considered to work if they attend regularly on prescribed working days. Although it is difficult to regard weekly holiday allowance as wages according to such opinions of the Supreme Court, the court considers weekly holiday allowance as wages because weekly holiday allowance should be included in comparable (comparative) wages as the basis of calculating minimum wages. In addition, there is a difference in interpretations on the treatment of weekly holiday hour between the cases of the Supreme Court and the administrative interpretations of the Ministry of Employment and Labor and therefore there are increasing confusions on treating weekly holiday hour and weekly holiday allowance in the field as well. The existence of such weekly holiday allowance can increase the substantial minimum wages borne by employers to aggravate wage burdens. Moreover, in the current situation of conflicts between cases and administrative interpretations, the presence of weekly holiday allowance can make complex wage systems in our country more complex, so that employers will be at risk for violating Minimum Wages Act and Labor Standards Act and replace their labor with their capital, which ultimately leads to the withdrawal of employment markets. So, the purpose of this study is to abolish weekly holiday allowance or pay weekly holiday allowance proportionally, and so simplify substantial wage systems, and then pursue win-win relationships between employers and employees.