[호봉정정] 항소[각공2012하,905]
In a case where Gap et al. joined Eul corporation and provided labor to Byung corporation in a business contract relationship with Eul corporation, etc. according to Eul corporation's instructions, and thereafter Byung corporation employed Gap et al, applied regular salary class 1 from the date of new employment, and Gap et al. sought additional salary increase from the date of enforcement of the former Act on the Protection, etc. of Temporary Agency Workers to Byung corporation until the date of new employment, the case holding that since the contract entered into between Eul et al. and Byung constitutes a temporary agency contract entered into with Eul corporation and the date of enforcement of the two years from July 1, 1998 to the date of expiration of the two years from the date of termination of employment period, direct employment relationship between Byung company and temporary agency worker Gap et al., and therefore, one regular salary class shall be granted from the date of employment agenda.
In a case where Gap et al. joined the company Eul and provided Byung with labor in accordance with the direction of Gap et al. after employed the company Eul in a contract relationship with Eul et al., and then applied the regular salary class 1 from the date of new employment after the employment order of the local labor office, and Gap et al. against Byung, the company Gap et al. sought an additional increase in salary class which is not calculated from the date of enforcement of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter the "former Dispatch Act") until the date of new employment, the case holding that Gap et al. worked for a considerable period from the date following the date of entry into the company Eul et al. for which Eul et al. provided labor to Byung for the same work as the regular workers of the company Byung and the company Gap, etc. were deemed to have been in a substantial command and supervision relationship with Gap et al., which is the temporary workers of the same kind.
Articles 2 subparag. 1 and 6(3) of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006)
Plaintiff 1 and 11 others (Law Firm Geosan, Attorneys Kim Wo-hwan, Counsel for the plaintiff-appellant)
[Defendant-Appellee-Appellant] Simho Co., Ltd. (Attorney Park Hong-chul, Counsel for defendant-appellant)
June 1, 2012
1. The defendant shall correct the salary grade of the plaintiff 2, 3, 4, 5, 6, 7, 8, 9, 10, and 12 as stated in the "Recognition Salary Schedule" in the corresponding salary grade in attached Table 2.
2. Each claim of Plaintiffs 1 and 11 and each claim of Plaintiffs 2, 3, 4, 5, 6, 7, 8, 9, 10, and 12 are dismissed.
3. Of the costs of lawsuit, the part arising between the plaintiffs 1 and 11 and the defendant shall be borne by the above plaintiffs, and the part arising between the plaintiffs 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and the defendant shall be borne by the above plaintiffs, while the remainder shall be borne by the defendant.
The defendant shall correct the plaintiffs' salary class as shown in the "request salary class" of the attached Form 2 attached hereto as stated in the corresponding salary class.
1. Basic facts
○ The Defendant, a company established for the purpose of manufacturing, selling, etc. different fish products (hereinafter “Defendant Company”), concluded a contract for work (hereinafter “instant contract”) with each of the relevant companies listed in the attached Table 2 “place of work 1. through 4.” of the attached Table 2 of the attached Table of the attached Table of the attached position of the Defendant Company (hereinafter “Nonindicted Company”). The Plaintiffs entered Nonparty Company, and provided the Defendant with labor by taking charge of manufacturing, etc., as well as the regular employees of the Defendant Company from the corresponding date indicated in the above attached Table of the attached Table of this case’s contract according to its direction.
On November 26, 2003, the non-regular labor union to which the Plaintiffs belong (hereinafter “non-regular labor union”) filed a petition against the Defendant company against the Gwangju Regional Labor Office for the violation of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Dispatch Act”). On January 27, 2004, the Defendant company received a corrective order from the head of the above labor office on the ground that “one hundred and twenty-eight workers working in the Defendant company are in the form of contract, but the actual status of the work is in violation of the Dispatch Act as they are dispatched workers,” and then, on March 5, 2004, 128 workers including the rest of the Plaintiffs except for the Plaintiffs, etc. who violated the Dispatch Act.
○ On April 29, 2004, the Defendant Company directly employed the remaining 154 persons among the 282 persons subject to rectification, who are the superior labor union of the Defendant Company, in the absence of grounds for disqualification, and agreed to discuss in the collective agreement in 2004 the time and conditions of employment. Accordingly, Plaintiff 2, 6, 9, 10, and 12 were employed as new employees.
○ On June 24, 2004, the Defendant Company entered into a wage organization agreement with the above National Democratic Textiles Association in 2004, and entered into a separate agreement with the purport of applying 1 regular salary class to employees including the Plaintiffs already employed among those subject to correction, and entered into an agreement with the non-party company as of September 21, 2004 to directly employ 45 workers of the non-party company and apply 1 regular salary class to them (hereinafter the above separate agreement, including the above separate agreement), and accordingly, employed Plaintiff 5 as new employees on September 21, 2004.
○ If the parts related to the instant claim in the former Dispatch Act (amended by Act No. 5512, Feb. 20, 1998; Act No. 5512, Jul. 1, 1998; Act No. 8076, Dec. 21, 2006; hereinafter the same shall apply), collective agreements, and employment contracts are extracted, it shall be as follows.
6. The term "worker dispatch contract" means a contract under which a temporary work agency and a user company agree on the temporary placement of workers between a temporary work agency and a user company under the direction and order of a user company in accordance with the terms of a contract on temporary placement of workers while maintaining the employment relationship after the temporary work agency employs a worker. Article 6 (Period of Temporary Agency) (3) If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiration of the two-year period: Provided, That the same shall not apply to cases where the relevant temporary agency worker explicitly expresses his/her objection. 1. 1. 1. 1. 1. 1. 1. 1. 1. 4. 4. 4. 4. Matters concerning the terms and conditions of service other than the terms and conditions of this contract are governed by the relevant Acts and subordinate statutes and the rules of employment, as prescribed by the rules of employment.
[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 5, 8, 10, 11, Eul evidence Nos. 1 through 2, the purport of the whole pleadings
2. The parties' assertion
A. The plaintiffs' assertion
Based on the premise that the instant contract constitutes a contract on temporary placement of workers, the Plaintiffs asserts that as of July 1, 1998, the two-year period of secondment had already been set as of July 1, 1998, pursuant to Article 6(3) of the former Dispatch Act, part of the Plaintiffs, for which the two-year period of secondment had already been set as of July 1, 1998, were to be deemed to have been directly employed on the Do and the above two-year period of secondment had already been set as of the date of entry into force, and that they would be deemed to have been directly employed on the Do and the above two-year period of secondment had already been set as of the date of entry into force. Accordingly, the Plaintiffs seek an additional raise in the salary grade
B. The defendant company's assertion
The defendant company asserts that the contract of this case is not a contract on temporary placement of workers, and even if it constitutes a contract on temporary placement of workers for domestic affairs, unless otherwise expressly provided for in the former Act on temporary placement of workers, the salary class 1 shall be applied from the date of new employment in accordance with the contract of this case, so there is no salary class to further raise.
3. Determination
A. Whether a contract on temporary placement of workers is concluded
Article 2 subparag. 1 of the former Dispatch Act provides that "temporary placement of workers" means that a temporary work agency employs a worker and has him/her engage in work for a user company under the direction and order of the user company in accordance with the terms of the contract on temporary placement of workers while maintaining the employment relationship." Thus, if an actual employer employs a worker regardless of the name or form of the contract entered into between two employers and then allows him/her to engage in work for another employer under the direction and order of another employer, such act constitutes temporary placement of workers, and thus, the former Dispatch Act shall apply.
In full view of the facts as seen earlier and the evidence based on its recognition, the following circumstances are revealed: (i) the Plaintiffs were all employed by the Defendant company for less than three years and more than 13 years since all of them were employed as new employees after they were employed by the Defendant company in accordance with the direction thereof; (ii) the Plaintiffs were engaged in the same work as regular employees of the Defendant company; and (iii) the media reports at the time of 2004 indicate that “the Defendant company-related persons, the non-regular workers, who were mixed with the regular employees upon the order of the head of the regular team team, were determined to change the non-regular workers into regular workers by coordinating the production process, which was combined with the regular employees, and thereby, it appears that the Defendant company actually directed and supervised the non-regular workers including the Plaintiffs, and (iv) the Gwangju Regional Labor Agency conducted investigation into the violation of the Dispatch Act of the Non-regular Workers Act and ordered the Defendant company to dispatch the workers to the investigation agency, and (v) in light of the fact that the Defendant company was under the direction to rectify the contract.
(b) Time of proposing employment;
In full view of the provisions of Article 6(3) of the former Dispatch Act and the legislative purport thereof, Article 6(3) of the former Dispatch Act means that a direct labor relationship exists between the user company and the temporary agency worker from the day after the second-year period of secondment expires from July 1, 1998 as of the enforcement date of the former Dispatch Act as of July 1, 1998. Thus, the time when the plaintiffs' employment proposal is made shall be the date indicated in the "date of Employment Agenda" in the attached Table 2 attached hereto.
(c) Calculation of salary class;
Article 6-2 (3) of the former Dispatch Act provides that "if a temporary agency worker is to be employed continuously for more than two years, working conditions shall apply to the worker, if the worker is engaged in the same or similar work as that of the temporary agency worker, in light of the legislative purport of the above employment agenda, and if the employment agenda is deemed as above, it is similar to the case where the employment contract was concluded between the plaintiffs and the defendant company, but no specific working conditions are determined. In such a case, it is reasonable to deem that working conditions are determined according to the supplementary effect of the collective agreement between the employment rules of the defendant company, the defendant company, the labor union, or the representative of the worker, and Article 6-2 (3) of the Dispatch Act newly established on December 21, 206, which provides that "if the temporary agency worker is to be employed directly, working conditions shall apply to the worker, if the worker is engaged in the same or similar work as that of the temporary agency worker, among the workers of the employer, pursuant to the above employment agenda under the former Act."
Therefore, even in cases where the employment is deemed pursuant to Article 6 (3) of the former Dispatch Act, the regular salary class 1 should be granted from the date of employment proposal to the date of regular salary class, while the collective agreement provides that regular salary class shall be given once a year in the month of employment. At the time of the closing of the argument in this case, there is no dispute between the parties that the plaintiffs' salary class is the same as the corresponding salary class stated in the attached Table 2 attached hereto, and thus, when calculating the plaintiffs' legitimate salary class, the above attached Table 3 attached Form 1 for the period from the corresponding date to the corresponding date indicated in the "new employment date" column shall be the corresponding salary class for each year during the period from the corresponding date indicated in the above attached Table 4 to the corresponding date.
D. Judgment on the defendant's assertion
Although the defendant company asserts that the salary grade 1 should be applied from the date of new employment in accordance with the instant agreement, there is no evidence to prove that the plaintiffs were affiliated with the National Democratic Textiles Federation at the time of the instant agreement, and even if the plaintiffs were affiliated with the National Democratic Textiles Federation, the instant agreement is null and void in violation of Article 6 (3) of the former Dispatch Act, which is a mandatory provision, so the defendant's assertion is without merit.
4. Conclusion
If so, the claims of plaintiffs 2, 3, 4, 5, 6, 7, 8, 9, 10, and 12 are justified within the scope of the above recognition, and each claims are dismissed as they are without merit. Each claims of plaintiffs 1 and 11 are dismissed as they are without merit. It is so decided as per Disposition.
[Attachment 1] List of Plaintiffs: Omitted
[Attachment 2] The current status of salary class: omitted
Judges Lee Jong-dae (Presiding Judge)