비전형 근로자의 소정근로와 근로조건 — 소정근로일 없는 도급근로자의 연차휴가권을 중심으로 —

Abstract

If a contract laborer receiving piece rate remuneration is recognized as a employee, they become employees paid on a piece-rate basis under Article 47 of the Labor Standards Act. Compared with typical employees, these employees paid on a piece-rate basis have a lot of differences in the wage system as well as the working realities. A typical worker's prescribed works (obligatory works) are determined by the prescribed working days and prescribed working hours. However, untypical employees, such as employees paid on a piece-rate basis, often do not set prescribed working days and prescribed working hours. Because performance is more important than hours worked. Since the Altwell water purifier engineer sets the date of visit (work date) in direct consultation with the customer, the court denied the water purifier engineer’s the right to annual leave on the grounds that there is no prescribed working day. This is because, according to precedent, the attendance rate, which is a requirement for annual leave, is calculated based on the prescribed working days. The primary purpose of annual leave is to ensure leisure for employees. Although annual leave is understood as a compensation for labor due to the attendance rate requirement, the guaranteed nature of annual leave cannot be denied. Therefore, it is necessary to interpret the right to annual leave of employees without a prescribed working day while maintaining this guarantee point of view. In the case of employees who do not have a prescribed working day, “at least 80% of work” in the Act can be judged by whether or not the performance rate of the work assigned by the employer is 80% or more. And since there is no prescribed working day, annual leave should be granted on a weekly basis rather than on a daily basis.