2016Na2016946 (Joint) Confirmation, etc. of the status of workers

2. E:

3. F;

4. G.

[Defendant-Appellant] Plaintiff 1 and 3 others

Attorney Jeon Jong-tae, Justice Kim Jong-hoon, Counsel for the plaintiff-appellant-appellee, Justice Kim Jae-hoon, Counsel for the plaintiff-appellant-appellee

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507923(Joint Judgment) Judgment

Preliminary Claim: The Defendant expressed the intent of employment to the Plaintiffs. As a result of the Defendant’s performance of the obligation to compensate for damages, the Defendant shall pay to Plaintiff D 38,631,09 won, 40,765,655 won to Plaintiff E, 37,597,583 won to Plaintiff F, 39,335,832 won to Plaintiff G, and 20% per annum from the day following the delivery of the copy of the instant complaint to September 30, 2015, and 15% per annum from the next day to the day of full payment.

【Purpose of Appeal】

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

At the first instance court, the Plaintiffs sought confirmation that the Defendant is in the status of the employee of the Defendant, and on such premise, sought payment of money by performing the obligation to pay wages, and sought preliminary payment of money by either expressing the intent of employment to the Defendant and performing the obligation to compensate for damages. The first instance court rejected the primary claim of the Plaintiffs and accepted the conjunctive claim. Accordingly, the subject of the judgment by this court is limited to the conjunctive claim.

2. Basic facts

The reasoning of this Court is that the reasoning of the judgment of the court of first instance is the same as that of the relevant part of the judgment of the court of first instance.

3. Whether to recognize temporary placement of workers;

A. Relevant legal principles

In a case where the plaintiff's employer requires a certain worker to perform the work for a third party, whether the legal relation constitutes temporary placement of workers subject to the Act on the Protection, etc. of Temporary Agency Workers (hereinafter "the Dispatch Act") is not attributable to the name or form of the contract attached by the party, but rather to the contract. Whether the third party directly or indirectly gives a binding order to the relevant worker to perform the work itself, whether it can be deemed that the relevant worker has been actually incorporated into the third party's work, such as the selection of workers who will be invested in the work for the plaintiff's employer, or the number of workers, education and training, work and rest time, leave, inspection of work attitude, etc., whether the contract purpose is independently exercised, and the specific scope of the contract purpose is determined as the performance of the work for the third party and distinct from the work of the worker belonging to the third party, and whether the plaintiff's employer has an independent company organization or facility necessary for achieving the purpose of the contract, etc. (see, e.g., Supreme Court Decision 2016Da163606, Feb.

B. Determination

Comprehensively taking account of the aforementioned facts and the evidence and the overall purport of the arguments as seen earlier, including Gap 5, 36, 38 through 41, 62, Eul 3, 7, 11 evidence, Eul V, W testimony of the first instance court, and the result of the on-site inspection of this court, and the following circumstances, the plaintiff Eul was ordered to dispatch the plaintiff Eul to the defendant's research institute from July 11, 2005 to July 10, 2007; Eul from May 9, 2006 to May 8, 2008; Eul from October 4, 2005 to October 3, 2007; and the plaintiff Eul employed the cooperation enterprise from July 19, 2005 to July 18, 2007 to be directed and dispatched from the defendant I research institute.

1) Whether the Defendant directly or indirectly directed and ordered the Plaintiffs, by giving binding instructions on the performance of his/her duties, etc.

A) The Defendant delivered daily work plans prepared on a monthly or weekly basis to the cooperation company. Workers belonging to the cooperation company, including the Plaintiffs, etc. (hereinafter referred to as “cooperative workers”) have to set the type of body and color of the body to be put into the painting process as prescribed by the Defendant’s production specifications, etc., and have to put the body in accordance with the actual drawing. Although the number of time required for the painting process in this case’s painting work is not specifically designated, the number of daily work hours is not determined according to the weekly work plan, etc. as determined by the Defendant, it is not, in principle, permissible for the cooperation company to arbitrarily adjust the volume of work without disregarding the daily work volume. Ultimately, the Plaintiffs did not individually participate in part of the production process in accordance with the work hours of the Defendant’s full-time workers in accordance with the production plan as determined by the Defendant, and thus, the Plaintiffs did not have been given the work volume, work order, work time, etc. individually from the Defendant.

In regard to this, the Defendant asserts that the said shop drawings, etc. do not have any meaning as a means to deliver information to handle the order work, but it cannot be deemed that the contents of the shop drawings are merely a matter to be referred to the seal work, and thus, it is difficult to deny the nature of the detention. (For example, it is not allowed for the Plaintiffs to inject them on any side other than the place indicated in the shop drawings) Furthermore, in order to be evaluated as a mere reference to work, there is room for the Defendant to exercise discretion, such as where the subcontractor or the subcontractor’s employees are able to perform the work not described in the shop drawings in the process of carrying out the instant painting work, but the subcontractor or subcontractor’s employees exercised their own discretion in the course of carrying out the painting work. In addition, if it appears that the subcontractor’s direct or indirect involvement in the instant painting work is merely a contractor’s exercise of the right to direction, it is not clear that the subcontractor and the subcontractor’s manager participated in the work as an independent contractor’s direction and order.

B) In addition to delivering daily work plans written on a monthly and weekly basis to the cooperative companies, the Defendant regularly held daily production meetings or prepared an emergency production plan, etc. for the purpose of coping with changes in the volume of work or work mode connected with design, etc. A researcher, who is a full-time employee of the Defendant, also sent the details of the work to be urgently handled through regular work plans, meetings, etc. through text messages, etc. to the cooperative employees (not only through text messages, but also through the method of the work to be urgently handled through text messages, etc., and directly deliver the details of the work to the cooperative employees. In this regard, it is predicted that the Defendant’s researcher, who is a researcher, issued separate instructions, such as the production specifications already produced, etc. in the event of changes in design work, etc., and that the ratio is about 10%.”

As above, the Defendant’s change of work methods at any time, and notified the subcontractor’s employees of the details of work to be handled urgently. As long as the subcontractor or the subcontractor’s employees in the process of performing the instant painting work did not actually allow the subcontractor to refuse to take work discretion due to the lack of working discretion, it is reasonable to view the Defendant’s above orders as a contractor, not as a contractor’s direction but as part of the employer’s direction and order.

As to this, the Defendant asserts that the delivery of text messages should be deemed as a kind of simple information delivery or collaboration. However, in light of the content of text messages, it is reasonable to view that the text messages sent by Defendant regular employees to the partner company to the partner company as part of the business direction and order in light of the fact that it was not allowed for the partner company to refuse the request for work on text messages or to perform work in a different way, and that it was not allowed for the partner company to perform the work in a different manner. Furthermore, unlike the mass production plant where work is conducted in the consortium that continuously operates, the instant painting process does not automatically go from the consortium level, and the work company completed the relevant work, and then operates the movement of the consultant level directly to move the body in a fair manner (so doing, 'Stop & Go' method). The Defendant asserted that the Defendant did not control and manage the volume of the instant painting work or speed of the instant seal work.

However, the movement of vehicles in the painting process of this case is bound to be linked to the schedule of production, such as the body and the design process planned by the Defendant for the self-production, and as long as the partner company’s employees in the painting process of this case had performed daily work performed by the Defendant in line with the adjacent process, it cannot be deemed that the Defendant’s direct and order relationship with the partner company’s employees should be denied solely on the ground that the level of management and control of the consortium work in the painting process of this case is relatively low compared with the consortium work of the mass production plant.

C) Although there is disagreement between the Plaintiffs and the Defendant regarding whether to keep a work standard book (Evidence A5, etc.), and the purpose of the work, as alleged by the Defendant, even if separate work standard book is not provided and kept at the place where the instant painting work is carried out, ① since the work standard book is very simple, if the Defendant did not specify the work standard book on the actual drawing, etc., it would have been unexpectedly anticipated that the subcontractor’s work performance method can be performed by the subcontractor, ② if the work standard book is not kept, or the work standard book is not kept in itself unnecessary, the nature of the work can be seen as labor provision. Rather, this can be seen as a mark indicating the dependence on the relevant work standard, ③ If the work standard is not necessary for supervising the work in fact, it cannot be seen that the Defendant’s work standard work document is not consistent with the Defendant’s work standard, and it can not be seen that the Defendant’s work duty is not equipped with the Defendant’s work standard and work discretion.

2) Whether the plaintiffs can be deemed as having been actually incorporated into the defendant's business by forming one working group with the employees belonging to the defendant and directly performing joint work

A) The Institute was established for the purpose of facilitating the research and development of new vehicles by manufacturing the J of small-scale and multi-varietys according to the design contents, conducting the verification of the suitability of their quality and performance, and reflecting the identified problems in the design, etc. The purpose of the research and development of new vehicles is to ensure that it is within the scope of the instant painting work located within the Institute. In other words, the Defendant has ordered collaborative workers to perform the duties of painting, such as painting, and to take measures to improve the problems identified in the course of performing the said painting work, and then again, to verify the suitability of the work by allowing collaborative workers to perform the duties of painting (which seems to be one of the main work performed within the instant painting work). The purpose of the Institute’s work is to directly examine and develop the external painting work conducted by the Defendant at the same time, including the aforementioned external work of the Institute, and to directly verify and develop the aforementioned external work conducted by the Defendant at the same time as the result of the work conducted by the Plaintiff at the same time (which is closely related to the aforementioned external work of the Institute).

B) In addition, the instant painting process falls under the middle part of the Defendant’s work process, namely, the Defendant’s “proving ? painting ? parts assembly (fix)” as a whole, and thus, the instant painting work of the subcontractor’s employees is bound to be conducted in conjunction with the Defendant’s regular employees in the previous and previous process. Each stage of work is promptly and systematically conducted, and the errors in the painting work found in the subsequent process can be corrected through the Defendant’s request for correction, namely, the Defendant’s request for correction, and the correction work of the subcontractor’s employees, i.e., the objective of the Defendant’s research and development can be achieved. In this respect, the Plaintiffs were actually incorporated into the Defendant’s work.

(iii) whether the collaborative entity independently exercises its power to select workers or to decide on the number of workers, education and training, work, rest time, leave, inspection of work attitude, etc.;

A) A collaborative company had the authority to select workers. However, considering that a collaborative company has succeeded to most of the employment of workers employed by the existing collaborative company, it cannot be said that the power to select workers is significant.

B) A collaborative company has the right to place any work among its workers. However, in light of the fact that the above selection process, the simplification of the instant seal work, and the fact that the number of workers and their skilleds are more important than the identity of workers in the instant seal work, the collaborative company’s right to place work is not significant.

C) A collaborative company has a field manager, such as the head of the team and the head of the team, assigned a field manager, and directly performed the management of the worker's work, such as commuting management, and the use of leave. However, the field manager, in addition to the management work (in the case of a primary collaborative company's worker's working hours, extension, night, and holiday work, reported to the president of the collaborative company and the defendant, etc.) and the worker in charge when the instant seal work is supported or a vacancy occurs (in the case of a manager of the team and the head of the team, etc., it is possible to support and replace the seal work, and to concurrently perform alternative work, and to concurrently perform alternative management). In addition, it is determined that the role of the supervisor was not much significant. Furthermore, as the contractor can manage the worker's work by a temporary work agency, the temporary work agency worker may be assigned to the worker under his/her control, and the temporary work agency worker's work management is essential for the temporary agency worker's work.

D) Ultimately, the key factors in the instant case are the number of workers to be placed in the instant painting work, daily working volume, working hours, working methods, order of work, work contents, working speed, and place of work, or whether the Defendant was determined or not. However, according to the above facts, the issue of how to place several workers in the detailed process of the instant painting work, their work hours, work methods, order, contents, and speed was determined by the standard T/O and the consortium established and operated by the Defendant and the Defendant, and the subcontractor did not actually have the power to exercise independently. 4) The specific purpose of the contract is to determine the specific scope of the contract as a performance of work with limited expertise and skills, and whether the Plaintiffs’ work assigned to the Defendant is distinguishable from the work of the Defendant’s employee.

A) The work of the subcontractor’s employees is a relatively simple work that the Defendant pre-determined and does not require specialized skills of the subcontractor or the expertise and skills of its employees. Therefore, the Defendant considered the provision of labor to its employees, rather than the inherent technical skills or expertise of the subcontractor, as more important factors in performing the painting work through the instant contract. The expertise and technical nature of the instant painting work appears to exist in the Defendant in charge of research and development of painting and construction methods, etc. for new withdrawal, and it is difficult to view that the expertise of the subcontractor or the subcontractor’s employees, as asserted by the Defendant, regardless of the subcontractor, refers to the worker’s ability to engage in the same repeated work for a long time.

B) If a partner company’s work assigned to the partner company’s employees is distinguished from the work of Defendant regular employees due to their unique expertise and technical nature, it may be an important letter of contract. However, as seen earlier, the work performed by the partner company employees in the contract process of this case does not constitute the work performed by the subcontractor employees.

5) Whether a collaborative company has an independent corporate organization or facility necessary to achieve the purpose of a contract, the Defendant provided employees of the collaborative company with all kinds of equipment, machinery, equipment, etc. used in the course of performing their duties without compensation, and the collaborative company only provided its employees with only some of the expendable goods, such as clothes or work clothes, etc., necessary for the work. There was no input of the collaborative company’s own capital or technology in the instant painting process. The collaborative company did not have any separate place of business or office outside of the Defendant, but did not have an independent corporate organization or installation.

Since the establishment of the I Research Institute, the representative of the collaborative company that entered into the instant contract with the Defendant (no person appears to have selected the relevant company through open competitive methods, such as bidding) seems to have worked for a long period of time in the Defendant ( U.S. witness testified that the representative of N and 0 is from the Defendant’s officer or employee).

As the subcontractor receives the contract price calculated by the Defendant according to the number of inputs (which is the standard T/O as determined by the Defendant), it has been virtually obstructed the possibility of creating an independent profit by his own effort and decision in the course of performing the contract.

In light of the purport of Article 20(1) of the Dispatch Act, the Defendant is obligated to provide the Plaintiffs with an employment obligation on the day following the expiry of the two-year period from the start date of each temporary agency work pursuant to Article 6-2(1) of the Dispatch Act (Plaintiff D, May 9, 2008; Plaintiff F, October 4, 2007; Plaintiff G, July 19, 2007; etc.) on the premise that the contract for temporary agency work has an essential nature, and that the contract for temporary agency work is not prepared in writing, if the contract for temporary agency work is not prepared, it cannot be accepted as applicable to the pertinent legal relationship. Accordingly, the Defendant is obligated to provide the Plaintiffs with an employment intent.

4. Nature and scope of the obligation to pay the money;

The reasoning of this Court is that the reasoning of the judgment of the court of first instance is the same as that of the relevant part of the judgment of the court of first instance.

5. Conclusion

Therefore, the plaintiffs' preliminary claim of this case shall be accepted within the scope of the above recognition and the remaining preliminary claim shall be dismissed as without merit. Since the judgment of the court of first instance is justified with this conclusion, the defendant's appeal against the plaintiffs is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Young-young

Judges Cho Young-young

I have further issued the letter. I have changed the blades of No. 103 (A evidence 7)

1) The “192 Trub Notes” (Evidence A No. 7-2), and the “ib first”, once unsatised, shall be deemed to be a middle-dome.

The detailed outline of delivery. There are contents, such as “A,” (No. 7 No. 7-3).

2) The primary and direct criteria for the calculation of the instant contract amount by the standard TIO calculated by the Defendant

all the elements mentioned above, such as the time required for demonstration work of the subcontractor and the training of workers;

In the light of the calculation process, etc. of the value in question taking into account such value, the standard T/O, in fact, may carry on the instant painting service.

It can be assessed that at least the number of persons necessary for each detailed process has been numericalized.

The Supplier shall use only a number of persons less than the standard T/O for each process of the instant painting service, whichever is less

It seems not to be difficult to present the case in which the work under the contract of this case is performed.

With respect to the accuracy of the standard T/O calculated in this case, both the plaintiffs and the defendants are less than standard T/O

The case where the subcontractor requests the increase of the unit price on the ground that it was produced shall be an example to the relevant argument.

Defendant’s contract on the ground that in fact the standard T/O was produced excessively high.

It seems that there was almost little demand for the reduction of the unit price in advance. Accordingly, the defendant's 's leave workers'.

In the event of this occurrence, it is argued that the number of people below the standard T/O would be input, but this is a human resource operation.

In the process, the defendant is an inevitable phenomenon, and the defendant is a worker of the subcontractor.

Standard T/O, etc. was calculated in a state where at least the number of days of leave use, etc. is considered on an average.

(2) In addition, the subcontractor shall employ new workers with low level of training in place of retired workers.

employee who represents the standard T/O, has been put into actual work, even if the employee has been put into actual work,

In the course of renewal of a contract, the standard T/O or contract amount shall be adjusted again reflecting these circumstances.

As such, the actual normative power of the standard T/O, which means the minimum number of workers for each detailed process, shall remain in force.

61 workers who are currently employed in the International Institute shall be

The standard T/O stipulated in the contract of this case and the number thereof are consistent. For this, the defendant shall have five managers.

It argues to the effect that it should not be included in standard T/O, but the management entity shall also engage in the management work.

In the event of the occurrence of a vacancy, etc., the person in charge has worked as a substitute for the worker in charge.

As such, it is difficult to consider these circumstances as the basis for denying the above meaning of standard T/O.