[Defendant-Appellant] Defendant 1 et al.

Attorney Kim Sejong-hee

Law Firm Sejong, Counsel for the plaintiff-appellant

Attorney Cho Jong-hee, Counsel for the plaintiff-appellant

A. Each employment center belonging to the Ministry of Employment and Labor under the defendant-affiliated with the defendant started to employ a civilian employment counselor (hereinafter referred to as "vocational counselor") while establishing the Human Resources Bank in 1996 (the job counselor was employed as a fixed-term worker at the first year and later converted into a inorganic contract worker). Since then, the importance of the employment infrastructure has increased due to the foreign exchange crisis, the employment security center expanded nationwide employment as a job counselor.

B. After that, the Ministry of Employment and Labor’s expansion of employment for counselors, the organization of human resources of state agencies is transferred to public officials and civilians as a result of the expansion of employment for counselors, and the structure of intangible human resources with many civilian human resources deepens. A special case for job counselors with three or more years’ work experience at the employment center around November 207.

The job counselor who has passed the employment was employed as a public official of 8 and 9 in counseling service (hereinafter referred to as the "public official of this case").

C. The Plaintiffs, who were employed as a vocational counselor by being placed at each employment center at the time of the above special employment, have served as a vocational counselor until now since they failed to undergo the above special employment procedure or failed to undergo the special employment procedure.

D. The Defendant paid the instant public officials the fixed-time allowance and fixed-time allowance, children education allowance, fixed-amount meal allowance, each holiday allowance and class allowance (hereinafter “each of the instant allowances”), but the Plaintiffs did not pay each of the instant allowances to the public officials.

2. The plaintiffs' assertion that there is no dispute, Gap evidence No. 12, Eul evidence No. 1, Eul evidence No. 1, and the plaintiffs' assertion

The plaintiffs are performing the same or similar duties as the public officials of this case. Nevertheless, the defendant does not pay each of the instant allowances to the plaintiffs, unlike the public officials of this case, on the ground of the plaintiffs' social status called "vocational counselor" or "organic Contract worker". The defendant's failure to pay each of the instant allowances to the plaintiffs violates Article 6 of the Labor Standards Act as discrimination with no reasonable ground and invalid, and the defendant is obliged to pay the plaintiffs unpaid wages due to such discriminatory treatment. In addition, the above discriminatory treatment of the defendant constitutes a tort that infringes on the plaintiffs' personality rights by violating Articles 103 and 104 of the Civil Act. Thus, the defendant is liable to compensate for damages suffered by the plaintiffs.

Provided, That

A. Whether the status of job counselors or inorganic contract workers is "social status" or not, Article 6 of the Labor Standards Act, which the plaintiffs are the grounds for the claim in this case, does not discriminate against workers on the basis of gender, and nationality, religion, or social status.

On the other hand, Article 10 of the Constitution provides that "All citizens shall not give discriminatory treatment to working conditions on the ground that they shall be treated as human beings, and shall have the right to pursue happiness," which declares that all citizens shall have high dignity and high value as human beings, and Article 11 (1) of the Constitution provides that "all citizens shall be equal before the law, and all citizens shall not be discriminated against in all areas of political, economic, 1, social and cultural life on the basis of gender, religion or social status. Anyone shall be free from discrimination on the basis of gender, religion or social status." Article 6 of the Labor Standards Act confirms that all citizens shall be equal in all areas of human life. Article 6 of the Labor Standards Act recognizes that the dignity and ideology of human dignity and equality in the area of working conditions is re-verification in the area of working conditions. Therefore, Article 6 of the Labor Standards Act shall be interpreted in harmony with the dignity and

2) Article 11(1) of the Constitution defines “social status” as “a position requiring a certain social evaluation as a long-term position in society” (see Constitutional Court Order 93Hun-Ba43, Feb. 23, 1995). Although there is no innate status system based on human dignity and equality ideology today, Article 11 of the Constitution prohibits discrimination by adding the requirement “social”. This is reasonable to say, even if there is no innate status, there may be social evaluations that there is social heat on a certain position that is long time according to the changing social situation, depending on the environment, economic conditions, and physical and mental ability, and if the above-mentioned evaluation leads to a low treatment, it may result in undermining constitutional dignity and human equality. Considering the above purport of Article 11 of the Constitution, “Article 6 of the Labor Standards Act” is the same as the definition of the Constitutional Court for a long-term period of time.

3) Regarding the concept of ‘social status', academic circles have divided the position on the scope of the concept of ‘social status', and there is a view that it is necessary to be a single-speed mark related to a particular character, such as fixedness, nationality, religion, etc. which can not be easily changed, but such fixedness or personality mark cannot be deemed as a social status concept mark. If the above mark is requested, the position that can be recognized as ‘social status' is very extreme, and this is contrary to the spirit of Article 11 of the Constitution that provides for the prohibition of discrimination by status, in addition to today’s status that does not have a social status system.

4) Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers provides that "An employer shall not give discriminatory treatment to workers employed in the same or similar workplace on the ground that they are fixed-term workers." Article 21(1) of the Act on the Protection, etc. of Temporary Agency Workers provides that "the temporary agency worker and the user company shall not give discriminatory treatment to the temporary agency workers compared to those employed in the same or similar workplace of the user company on the ground that they are temporary workers." On the other hand, the Act that directly prohibits discriminatory treatment to the temporary workers employed in the same or similar workplace on the ground that they are temporary workers does not exist as of now, but only prohibits discriminatory treatment pursuant to the application of Article 6 of the Labor Standards Act. However, if the concept of "social status" is reduced by demanding fixed or character signs on the concept of "social status, Article 6 of the Labor Standards Act applies to the fixed-term worker, and it does not conform with the purpose of Article 6 of the Labor Standards Act, even if there is no reasonable discriminatory treatment as to the reason.

5) On the other hand, the Labor Standards Act imposes criminal punishment on a violation of Article 6 of the same Act (Article 114), and the concept of "social status" under the above provision should be interpreted so that the possibility of prediction can be guaranteed in light of the principle of clarity required by the principle of no punishment without the law. However, since the language of the law cannot be used to a certain degree of value and the general and normative concept including the concept of value cannot be used, the principle of clarity basically requires a minimum clarity, and its meaning can be confirmed through a judge's supplementary value judgment, and such supplementary interpretation cannot be seen as contrary to the principle of clarity if there is no possibility that such supplementary interpretation may depend on the individual attitude of the interpreter (see Supreme Court Order 2008Hu264, Oct. 23, 2008). Therefore, even if fixedness or character sign is not deemed as a social status mark, and thus the interpretation is somewhat expanding between the scope of social status, it is difficult to say that such interpretation violates the principle of clarity.

6) Therefore, the "social status" under Article 6 of the Labor Standards Act refers to the case from the viewpoint of "the status of being occupied for a long time in society, which entails a evaluation of a certain social level and in particular opened." First, as to whether the status of "vocational counselor" falls under social status, it is difficult to see that the status of "vocational counselor" generally entails evaluation of a certain social level and in particular, it is difficult to see that the status of "vocational counselor" falls under the category of evidence No. 1, and in full view of the overall purport of oral arguments in order to become a "vocational counselor", in order to become a "vocational counselor," a person who has obtained a qualification for a vocational master under the National Technical Qualifications Act or a four-year university or higher under the Higher Education Act, a person who has obtained a four-year university or higher degree under the Higher Education Act, and a person who has worked for a high school graduate or higher, and it is difficult to see that the status of "vocational counselor" is accompanied by a certain social evaluation.

7) Next, it is considered whether the position of "inorganic contract position" is a social status. As part of the countermeasures against non-regular workers, ten years have passed since the status of "inorganic contract position" or the form of employment appeared in our society. In our society, it is rare that the status of "inorganic contract position" has been changed for a considerable period of time, and it is a case where the status of "inorganic contract position" is acquired once due to the unique characteristics that it is connected with occupation or work. In addition, since the "inorganic contract position" is most cases where the status of "inorganic contract position" is lower treatment or remuneration than regular workers, the evaluation that "inorganic contract position" has a capacity or ability, compared to regular workers, can be considered as a whole society as well as the relevant workplace. As in this case, it is reasonable to view that the lawsuit continues to increase for reasons that "discrimination against non-inorganic contract position" falls under the category of "discrimination against the worker's status" under Article 6 of the Labor Standards Act.

B. Whether Article 6 of the Labor Standards Act is violated

1) Relevant legal principles

The term “discriminatory treatment” under Article 6 of the Labor Standards Act refers to determining whether a norm, such as law, is in violation of the constitutional right to equality, and, like in cases of determining whether a norm, such as law, is identical to that of the Constitution, it cannot be said that there exists a discrimination itself if it is different in essence from that of the same one. Therefore, in order to constitute a discriminatory treatment prohibited under the Labor Standards Act, the person asserting discrimination as the premise thereof and the person who is compared to him/her should, in essence, belong to the same comparative group (see, e.g., Supreme Court Decisions 2013Da1051, Oct. 29, 2015; 2009Hun-Ma538, Mar. 25, 2010; 2010Hun-Ma167, June 24, 2010).

In addition, the above principle of equal treatment under the Labor Standards Act is derived from the right to equality under the Constitution, and in order to examine whether the compared group is essentially identical in terms of the premise to determine whether the right to equality is infringed, the comparison group should not take into account physical characteristics, such as the inherent characteristics of the compared group itself or the peculiarity of duties, and the normative interpretation of the meaning and purpose of the constitutional provisions and the pertinent legal provisions related to comparison should also be taken into account (see, e.g., Constitutional Court Order 9HunGa18, Dec. 26, 1996; Constitutional Court Order 9HunMa494, Nov. 29, 2001).

Meanwhile, even if the comparable person who belongs to the "inherent comparison group" is treated differently from the comparable person who belongs to the "inherent comparison group," such treatment can be deemed to constitute "discriminatory treatment as provided by Article 6 of the Labor Standards Act without any justifiable reason." In this context, "where there is no justifiable reason" means where there is no need to treat workers differently, or where it is deemed necessary to treat workers differently, the method, degree, etc. are inappropriate (see Supreme Court Decision 2011Du7045, Dec. 10, 2012).

2) Determination

In full view of the purport of the arguments in the statements in the Health Team, Gap evidence Nos. 12 through 19, and Eul evidence No. 1, the plaintiffs were initially employed as vocational counselors through the same employment procedure as the public officials of this case. After then, only the public officials of this case were transferred to class 8, 9 through the special employment procedure. Employment counselors were able to take charge of overall affairs within the Employment Center, such as employment assistance, vocational ability development, employment insurance, foreigners, employment security, etc., and they were able to take charge of in-depth counseling and job-seeking affairs related to selective job seekers, and job-seeking affairs related to job-seeking and job-seeking. The job-seeking list within each Employment Center includes the job-seeking and the job-seeking nature performed by the public officials of this case. The job-seeking names of the job counselors are entered as the business agents of the public officials of this case, and there is no difference between the job-related space and working conditions, and the public officials of this case

The fact that does not distinguish whether it is a recognition job counselor is recognized is recognized.

However, in light of the following circumstances acknowledged based on the above basic facts and the statements Nos. 1, 3, and 1, 1, and 2 of Gap (including branch numbers) as a whole, it is difficult to view the plaintiffs and the public officials of this case as belonging to the same comparative group in essence. Moreover, it is difficult to view that the defendant discriminated against the plaintiffs differently from the public officials of this case without reasonable grounds, thereby violating Article 6 of the Labor Standards Act, Articles 103 and 104 of the Civil Act.

① Around November 2007, the Defendant: (a) conducted a document screening, written examination (the first society, the second employment relationship law), and interview to a vocational counselor with a career of working at an employment center for at least three years; and (b) specially recruited the instant public official; (c) such procedure was designed to secure the procedural legitimacy of the employment of public officials and verify the minimum eligibility of public officials. However, the Plaintiffs were the said special persons.

The Plaintiffs were unable to pass the minimum eligibility verification for being employed as a public official, but failed to apply for the recruitment procedure, or failed to apply for the special recruitment procedure, and thus could not be converted to the instant public official. Furthermore, it is difficult to find out the circumstances, such as the existence of any cause attributable to the Defendant in the failure of the Plaintiffs’ special recruitment

② The instant public official appears to have carried out various administrative affairs, management affairs, reporting affairs, etc. in addition to the duties performed by a vocational counselor. Furthermore, the instant public official, unlike the vocational counselor, is subject to the State Public Officials Act and the provisions on the service of State public officials, so the duty of good faith, duty of obey, etc. is required as a public official, and his responsibility is required accordingly. As can be seen, there is

③ The wage system for job counselors differs from the wage system for the instant public officials, and in particular, the basic salary for job counselors, who are the same salary class, is higher than the basic salary for the instant public officials. For example, as of 2016, the former job counselors’ salary class 1,879,600 won was paid, while the former job counselors’ salary class 1 of class 9 (the Ministry of Employment and Labor, through the special employment as above, employs the former counselors’ salary class 8 to class 9) was paid the basic salary class of KRW 1,346,400. Furthermore, wage for job counselors was determined annually through the Ministry of Employment and Labor and collective bargaining with the Ministry of Employment and Labor, while the amount of wage of the instant public officials is determined based on the standard living cost, price level, and other circumstances, it is difficult to readily conclude that there was no reasonable reason between the Defendant and the present job counselors’ wage increase method (see Article 46(2) of the State Public Officials Act).

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judge Lee Jong-hoon

Judges Noh Jeong-ho

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.