Punishing Violation of Permissible Temporary Worker Agency

[25-2(A) KCCR 106, 2011Hun-Ba395, July 25, 2013]

In this case, the Constitutional Court held that the provisions of former and current “Act on the Protection, etc. of Temporary Workers” providing for criminal punishment of those engaging in temporary worker agency business outside the scope permitted by the Act are not in violation of the clarity rule undernulla poena sine lege, or the principle of punishment by statute.

Background of the Case

(1)The complainant was prosecuted on charges of violating the Act on the Protection, etc. of Temporary Workers by, in effect, conducting temporary worker agency business in jobs directly related to manufacturing production, since the employees of the complainant engaged in tire packaging at a factory of OO Tire under the direction and instruction of the tire company's manager. Consequently, the complainant was sentenced to a fine.

(2)With an appellate case pending at the court of appeals, the complainant filed a motion requesting constitutional review of Article 43 Section 1 of the former and current Acts on the Protection, etc. of Temporary Workers. However, the request was denied by the Gwangju High Court (2011ChoKi3), and the complainant filed a constitutional complaint with the Constitutional Court on December 27, 2011.

Provisions at Issue

The subject matter of review is the constitutionality of a) the part that states “A person who carries on temporary worker agency business in violation of Article 5 (4)” in Article 43 Section 1 of the former Act on the Protection, etc. of Temporary Workers (Enacted Act No. 5512, Feb.

20, 1998 and before being amended by Act No. 8076, Dec. 21, 2006) and b) the part that states “A person who carries on temporary worker agency business in violation of Article 5 (5)” in Article 43 Section 1 of the current Act (Amended by Act No. 8076, Dec. 21, 2006), which are hereinafter jointly referred to as the “Provisions” and specified below:

Act on the Protection, etc. of Temporary Workers (Enacted Act No. 5512, Feb. 20, 1998, later amended by Act No. 8076, Dec. 21, 2006)

Article 43 (Penal Provisions)

Any of the following persons shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won:

1. A person who carries on temporary worker agency business in violation of Article 5 (4), 6 (1), (2) or 7 (1);

Act on the Protection, etc. of Temporary Workers (Amended by Act No. 8076, Dec. 21, 2006)

Article 43 (Penal Provisions)

Any of the following persons shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won:

1. A person who carries on temporary worker agency business in violation of Article 5 (5), 6 (1), (2) and (4) or 7 (1);

Summary of the Decision

1. Whether Rule of Clarity under the Principle ofnulla poena sine legeis Violated

It is defined in the Act that the term “temporary placement of workers” refers to “engaging a worker employed by a temporary worker agency in services for a user company under the direction and instruction of the user company in accordance with the terms and conditions of a contract on temporary placement of workers, while maintaining his/her employment relationship with the temporary worker

agency.” As such, given that the purpose of the temporary placement contract is to provide labor and that the user company is entitled to direction and instruction of the temporary workers in specific works, temporary placement of workers differs from the “contract for work” in the Civil Act whose purpose is to complete the performance of work agreed and under which the contractor has no right to direction and instruction. The courts make judgments on whether a particular case constitutes “temporary placement of workers” based on comprehensive consideration of practical factors, such as contractual purpose and the user company's authority of direction and instruction in the enforcement of contract, regardless of the format or title of the contract. Therefore, the standard for interpreting the concept of “temporary placement of workers” is set forth based on the Act's definitive provision and its nature, as well as the judge's complementary interpretation. Subsequently, the Provisions are not in violation of the rule of clarity under the Principle ofnulla poena sine lege.

2. Whether the Rule against Excessive Restriction is Violated

The Provisions limit the permitted scope of temporary worker agency business given the nature of indirect employment which, compared to direct employment, bears a bigger risk of being disadvantageous in terms of status and wage. This is to ultimately promote direct employment of workers and guarantee adequate wage by ensuring appropriate operation of temporary worker agency business. As such, legislative purpose of the Provisions are justified and it appears to be an appropriate means to limit the works for temporary placement of workers and to impose criminal punishment on user companies which violate the restriction.

Works requiring professional knowledge, skills or experience or the nature of duties are permitted to place temporary workers, except for works directly related to production in the manufacturing industry; Notwithstanding the aforementioned, temporary workers may be placed

for certain periods if a vacancy occurs due to child birth, an illness, injury, etc. or if there is a need to temporarily or intermittently secure manpower, except in areas that are absolutely forbidden such as construction sites. This, consequently, provides for a considerably extensive area of work permitted for temporary worker agency business (Article 5, 6 of the Act). Although the jobs of direct relevance to manufacturing production and those performed at a construction site, etc. cannot be assumed by temporary workers, there is good reason to exclude these types of jobs from temporary worker agency business for the following reasons: Allowing temporary placement for jobs directly related to manufacturing production may result in poorer working conditions such as employment instability due to a change of labor force in the manufacturing industry to one that is primarily derived from indirect employment; All works of construction, harbor stevedore and seamen are of harmful and hazardous nature and therefore should be conducted under the user company's direction and instruction on the specific sites, deeming them inappropriate for temporary placement of workers

Also, as for the non-compliance charges or negligence penalties, if the statute violation can lead to huge financial gains, there is a likelihood that people would rather brave paying fines to maintain contracts on temporary placement of workers. In this light, it is hard to conclude that an administrative regulation like such fines alone is sufficient in fulfilling the legislative purpose of the Provisions.

Therefore, the Provisions are not to be deemed to excessively restrict the freedom of occupation of those intending to conduct a temporary worker agency business.