'Working on Red Days' Emart Employees Do Not Receive Holiday Pay [Why & Next]'

Emart Employee Wage Lawsuit Loses in 2nd Trial
Analysis of 2nd Trial Verdict... "Mandatory Closure Is Not a Statutory Holiday"
Contradicts Union's Argument Against Weekday Conversion

Former and current employees of Emart lost again in the appellate court in a wage claim lawsuit against the company, alleging they did not receive holiday work allowances. The second trial court ruled that the mandatory holiday for large marts, one of the regulations on large mart operations, does not correspond to the statutory holiday of the affiliated workers, dismissing the claim. Large mart employees argued that the mandatory holiday on Sundays could be considered a working day, and therefore, there should be no holiday work allowance. As the government is pushing to convert the mandatory holiday for large marts to weekdays, strong opposition is expected as mart employees may have to work every Sunday without additional allowances.

According to the industry and legal circles on the 8th, the Seoul High Court Civil Division 15 (Presiding Judges Yoon Kang-yeol, Jung Hyun-kyung, Song Young-bok) ruled on the 2nd that 1,117 former and current Emart employees lost the wage claim lawsuit against the company, as in the first trial. The court stated, "The first trial ruling is just," and "The plaintiffs' appeal is dismissed for lack of merit."

Seoul High Court / Photo by Moon Honam munonam@

Over 1,000 Former and Current Emart Employees Sue for 60 Billion KRW in Holiday Work Allowances

Earlier, Emart employees filed a lawsuit claiming they did not receive about 60 billion KRW in holiday work allowances from August 2017 to December 2020. They worked on the first and third Sundays of each month when large marts were open, but the company did not pay holiday work allowances (150% of the ordinary wage), they claimed. Emart countered that, according to an agreement with the 'company-wide employee representative,' substitute holidays were provided on the second and fourth Sundays of each month, which are mandatory holidays under the Distribution Industry Development Act, so there was no need to pay holiday work allowances. However, the employees argued that designating the mandatory holiday, which was originally a holiday, as a substitute holiday was illegal and invalid.

The first trial court dismissed the employees' claim, stating, "It is difficult to find any illegality in the substitution of holidays." The court held that there was no illegality in Emart designating the mandatory holiday as a substitute holiday instead of paying holiday work allowances. The second trial court upheld this original judgment and pointed out that the premise of the employees' claim itself was wrong.

Emart employees filed the lawsuit assuming that the mandatory holiday Sunday was a working day, but the court drew a line, stating, "The mandatory holiday does not mean a holiday that releases the worker's obligation to work." The mandatory holiday does not correspond to a statutory holiday under the Labor Standards Act.

Sunday Is Not a Statutory Holiday

According to Article 55 of the Labor Standards Act, statutory holidays are 'Labor Day (May 1st)' and the 'weekly holiday,' which guarantees workers at least one paid holiday per week on average. The weekly holiday does not have to be on Sunday but is given on a fixed day each week. Also, if agreed in writing with the employee representative, it can be substituted with a specific working day. Generally, workplaces operating Monday through Friday designate Sunday as a paid holiday. However, not all workplaces must designate Sunday as a paid holiday, and the court judged that large marts fall under this case.

This judgment is significant as it is the first time the court defined whether the mandatory holiday under the Distribution Industry Development Act corresponds to a statutory holiday. Article 12, Paragraph 2 of the current Distribution Industry Development Act stipulates that special self-governing mayors, mayors, county governors, and district heads may order restrictions on business hours or designate mandatory holidays for large marts when deemed necessary to establish sound distribution order, protect workers' health rights, and promote coexistence between large stores and small distribution businesses.

Amended in January 2013, this law allows local governments to restrict business hours 'from 0:00 to 10:00 a.m.' and designate 'two public holidays per month' as mandatory holidays, but through agreement with stakeholders, non-public holidays can be designated as mandatory holidays. Public holidays are official holidays designated under the 'Regulations on Public Holidays of Government Offices,' including Sundays, January 1st, Lunar New Year holidays, etc., and differ in concept from statutory holidays designated under the Labor Standards Act.

The court explained, "Although the wording and reasons for the amendment of Article 12-2 of the Distribution Industry Development Act include workers' health rights, this phrase does not directly mean that mandatory holidays correspond to statutory holidays for large mart workers," adding, "Workers' health rights do not necessarily have to be interpreted as statutory holidays additionally granted beyond the holidays traditionally guaranteed to promote or enhance them."

Since mandatory holidays can be designated as substitute holidays or agreed upon as agreed holidays by labor and management at the store, employees can rest on mandatory holidays. Also, even if employees work on mandatory holidays, they do not serve customers, so the quantity and quality of work are lighter than on normal operating days. A Seoul High Court official said, "There was no precedent to determine whether the mandatory holiday designated under the Distribution Industry Development Act is a statutory holiday for workers, but in this case, it was the first time to directly rule that it does not correspond to a statutory holiday for workers."

A mandatory closure notice is posted at a large supermarket in Seoul. Photo by Kang Jin-hyung aymsdream@

Challenges Expected in Converting Large Mart Mandatory Holidays to Weekdays

However, this court ruling is expected to negatively affect workers' public opinion regarding the government's plan to convert the mandatory holiday for large marts to weekdays. The Yoon Seok-yeol administration is strongly pushing to allow large marts to open every Sunday. The government announced on the 22nd of last month at the fifth public discussion held at the Hongneung Content Talent Campus in Dongdaemun-gu, Seoul, that it would abolish restrictions on large mart business hours.

Kang Kyung-sung, First Vice Minister of the Ministry of Trade, Industry and Energy, recently emphasized at a consumer meeting held in Daejeon, "To resolve public inconvenience caused by large mart weekend holidays, mandatory holidays should be promptly converted to weekdays," adding, "Regulatory improvements are needed to reflect consumption trends such as the increase in single-person households and expansion of online shopping, including nationwide expansion of early morning delivery."

However, many employees at large marts, including Emart, express dissatisfaction over the lack of holiday work allowances for working on public holidays. They argue that working on public holidays makes it difficult to enjoy normal leisure, family life, and social participation, and not receiving allowances worsens their quality of life.

Moreover, if large marts operate every Sunday as per government policy, employees' dissatisfaction is likely to grow even more. Especially, since this ruling removes the grounds for large mart employees to claim holiday allowances for Sunday work, opposition to converting mandatory holidays to weekdays is expected among employees. Currently, the Korean Confederation of Trade Unions Mart Industry Union opposes the conversion of mandatory holidays to weekdays for these reasons. The union issued a statement immediately after the announcement of the government's policy to abolish mandatory public holiday closures for large marts at the State Affairs Coordination Office last month, protesting that it is "a measure that infringes on workers' right to rest."