근로기준법상 휴일과 연차휴가에 관한 소고

초록

This essay aims to examine holidays and annual leave which is a frequent topic of heated debate among the leave system prescribed under the Labor Standards Act (hereinafter “the Act”). To this end, this paper begins with exploring the meaning of “rest” under an employment contract, closely looking at issues pertaining to Korea’s leave system, and comparing Korea’s leave system to international labor standards. The main part of this essay centers on discussing the following points: Is there a conceptual and legal difference between a weekly holiday and holiday? How should holiday working hours be considered when calculating overtime hours? What is holiday work in which employees are provided additional wage, and is additional wage paid when working while on annual leave? How does attendance rate factor in when calculating annual leave entitlements? How is annual leave calculated during the period of industrial action? One of the most pressing challenges for the Korean labor market is to normalize work hours. To make this happen, Korea’s leave system needs to be operated in line with its original intent, i.e., protecting the health of employees and ensuring leisure time. Working hours and rest are fundamental elements of an employment contract, and a prerequisite for a sustainable society. In order for the leave system to properly function, monetary compensation for taking time off work should not be the focal point in labor-management negotiations. Furthermore, statutory interpretations on holidays and annual leave should focus more on employees’ entitlement to take leave rather than compensatory benefits. Based on the preliminary findings, the following can be concluded: (i) Working seven consecutive days should be strictly regulated under the Act. (ii) Holiday working hours should be included in overtime hours, and employees should be paid an extra premium if holiday work is regarded as overtime. (iii) Holiday work under an employment contract should be interpreted as days in which employees are not obligated to work pursuant to relevant statutes, collective agreement, employment rules, etc. Working while on annual leave, namely on a specific date chosen by an employee, should be regarded as holiday work in which additional wage is provided. Annual leave should be considered as an employee’s entitlement to take time off from work in line with international labor standards. (iv) Legal attendance rate under the Act should be regarded as an element for calculating annual leave allowance and not annual leave in itself (the latter requires legislative revision). (v) Period of lawful industrial actions, etc. should be excluded from actual working days when calculating attendance rate.

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