[부당노동행위구제재심판정취소][공1999.12.15.(96),2525]
Requirements to recognize a third party's employee as a third party's employee at the place of business employed by the plaintiff's employee;
If a person who is employed by the employer of a third party and is engaged in the work of a third party in the business place of the third party, the employer of the third party is merely a formal and nominal relationship with the labor agency of the third party by lacking identity or independence as the employer of the third party. In fact, the relevant employee is in a subordinate relationship with the third party, and the person who actually pays wages is the third party, and the other party to the provision of labor is also the third party, so an implied labor contract relationship between the relevant employee and the third party is established.
Articles 14 and 15 of the Labor Standards Act
Supreme Court Decision 72Da895 delivered on November 14, 1972 (Gong20-3, 104) Supreme Court Decision 78Da1530 Delivered on July 10, 1979 (Gong1979, 12096), Supreme Court Decision 96Nu1504 Delivered on June 11, 1996 (Gong1996Ha, 2211), Supreme Court Decision 99Ma628 Delivered on July 12, 199 (Gong199Ha, 1924)
Seoul Gyeonggi Port Trade Union (Law Firm citizen's General Law Office, Attorneys Yoon Jong-sung et al., Counsel for the plaintiff-appellant)
The Chairperson of the National Labor Relations Commission
Gyeonggi Chemical Industry Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 96Gu42750 delivered on November 13, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. On the first and second grounds for appeal
Workers under the Labor Standards Act refer to those who provide labor in a subordinate relationship with the employer for the purpose of wages. However, if the employer is employed by the employer of the employer of a third party and intends to be employed by a third party in the workplace of a third party, the employer of the plaintiff is merely formally and nominal, such as having no identity or independence as the employer, or having the same labor agency with the third party, and in fact, the relevant employee is in a subordinate relationship with the third party, and the actual payment of wages is a third party, and the party who provides labor is also a third party, and thus, it should be evaluated that an implied labor contract relationship exists between the relevant employee and the third party (see Supreme Court Order 9Ma628, Jul. 12, 199).
Examining the reasoning of the judgment below in light of the above legal principles and records, the court below acknowledged facts as stated in its reasoning concerning labor relations between the intervenor joining the defendant company (hereinafter "the intervenor company") and the non-party as stated in the judgment of the court below, and determined that the non-party is not an intervenor's employee, and the intervenor company does not succeed to the employment relationship of the service company's employees, and there is no error in the misapprehension of the rules of evidence or in the misapprehension of the legal principles as to the establishment of implied employment relationship or the succession of employment relationship, and there is no error of misconception of facts in violation of the rules of evidence or in the misapprehension of the rules of experience, and there is no error in the misapprehension of the legal principles as to the establishment of implied employment relationship or the succession of employment relationship. In addition, the above judgment of the court below is also deemed to include
2. On the third ground for appeal
As duly confirmed in the reasoning of the judgment below, as long as the non-party in the judgment of the court below cannot be seen as a worker of the intervenor company, there is no room for establishment of unfair labor practices against them. Thus, the judgment of the court below to the same purport is just, and there is no violation of the rules of evidence, violation of the rules of experience, or misapprehension of the legal principles as to unfair labor practices.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Cho Cho-Un (Presiding Justice)