Case on the Prohibition of and Punishment for the TemporaryPlacement of Workers in Jobs Directly Related to Production in the Manufacturing Industry

[2016Hun-Ba346, December 28, 2017]

In this case, the Constitutional Court held that the provisions concerning “except for jobs directly related to production in the manufacturing industry” in Article 5 Section 1; “a person who was provided with temporary agency services directly related to production in the manufacturing industry in violation of Section 1” in Article 5 Section 5; and “a person in violation of Article 5 Section 5 who was provided with temporary agency services directly related to production in the manufacturing industry in violation of Article 5 Section 1” in Article 43 Section 1-2 of the Act on the Protection, etc. of Temporary Agency Workers, which exclude jobs directly related to production in the manufacturing industry from those permitted for temporary work agency business, prohibit anyone from being provided with temporary agency services in relation to such jobs and punish violation thereof, do not infringe upon the freedom of the user company to perform its occupational functions.

Background of the Case

(1) Petitioner ○○○○ Inc. (hereinafter referred to as the “petitioning company”) is a corporation that operates a mobile phone case manufacturing business; and petitioner ○○○ was the CEO of this company.

(2) The petitioners were summarily indicted on the charge of violating the Act on the Protection, etc. of Temporary Agency Workers, as ‘petitioner ○○○ was provided with temporary agency services directly related to production in the manufacturing industry by receiving the placement of 27 temporary workers and ordering them to engage in tasks

including assembling mobile phone cases on the company’s assembly team, despite the fact that no person can be provided with temporary agency services for work directly related to production in the manufacturing industry from a person who engages in temporary work agency business; hence the petitioning company, with petitioner ○○○ as CEO, violated the law as cited above.’ The petitioners were each notified of a summary order for a fine of five million won and requested a formal trial.

(3) While the aforementioned trial was pending, the petitioners filed a motion to request the constitutional review of Sections 1, 2 and 5 of Article 5 and Article 6 Section 4 Item 2 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter referred to as the “Temporary Worker Act”). When this request was denied, the petitioners filed a constitutional complaint on September 28, 2016, regarding the aforementioned provisions.

Subject Matter of Review

The subject matter of review in this case is whether the provision concerning “except for jobs directly related to production in the manufacturing industry” in Article 5 Section 1 of the Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 on December 21, 2006) (underlined below); the provision concerning “a person who was provided with temporary agency services directly related to production in the manufacturing industry in violation of Section 1” in Article 5 Section 5 of the same Act; and the provision concerning “a person in violation of Article 5 Section 5 who was provided with temporary agency services directly related to production in the manufacturing industry in violation of Article 5 Section 1” in Article 43 Section 1-2 of the Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 12632 on May 20, 2014) (hereinafter the above provisions are collectively referred to as the “Instant Provisions”) violate the Constitution. The Instant Provisions read as follows:

Provisions at Issue

Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 on December 21, 2006)

Article 5 (Jobs, etc. Permitted for Temporary Placement of Workers)

(1) Jobs permitted for temporary work agency business shall be those considered appropriate for that purpose in consideration of professional knowledge, skills, experience or nature of the work, and prescribed by Presidential Decree,except for those directly related to production in the manufacturing industry.

(5) No person shall engage in temporary work agency business nor be provided with temporary agency services from a person who engages in temporary work agency business in violation of Sections 1 through 4.

Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 12632 on May 20, 2014)

Article 43 (Penalty Provisions)

Each of the following persons shall be punished by imprisonment for not more than three years or by a fine not exceeding 30 million won:

1-2. A person who is provided with temporary agency services, in violation of Article 5 Section 5, Article 6 Sections 1, 2 and 4, or Article 7 Section 3.

Summary of the Decision

The purposes of the Instant Provisions are to aim for the proper operation of jobs directly related to production, which are the core pillars of the manufacturing industry, to promote the direct employment of workers and to guarantee the payment of fair wages for workers. Thus, the Instant Provisions are found to have a legitimate purpose and to constitute appropriate means.

Although the Instant Provisions prohibit temporary placement of workers in jobs directly related to production in the manufacturing industry, and punish the violation thereof, as of now the social and

economic side effects incurred by the expansion of the temporary placement of workers cannot be sufficiently countered; given the nature of the manufacturing industry, it is crucial to prevent the temporary placement of unskilled workers or frequent employee turnover; exceptions are made to allow temporary placement of workers in jobs directly related to production in the manufacturing industry in certain cases, as per Article 5 Section 2 of the Temporary Worker Act; and it is difficult to say that the legislative purpose can be effectively realized merely through administrative penalty measures. Thus, the Instant Provisions do not violate the rule of minimum restriction.

Furthermore, the public interest including facilitating the proper operation of jobs directly related to production in the manufacturing industry, promoting the direct employment of workers, and guaranteeing fair wages are no less significant than the restriction on the freedom of the user company to perform occupational functions caused by the prohibition on being provided with temporary agency services directly related to production in the manufacturing industry. Thus, the balance of interests is satisfied.

Therefore, the Instant Provisions do not infringe upon the freedom to perform occupational functions of companies that seek temporary agency services directly related to production in the manufacturing industry.