2015Gudan3602 Revocation of the cancellation of the approval of surveillance work

Medical Corporations, the Legal Corporations and the White Medical Foundation

The Administrator of the Central and Central Regional Employment and Labor Office;

November 4, 2016

January 13, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On September 24, 2015, the Defendant revoked the revocation of the Defendant’s exemption from application to the Plaintiff’s surveillance employee.

1. Details of the disposition;

A. From April 1987, the Plaintiff is a medical corporation operated with 90 full-time workers at Osan City Industrial Complex from 69-27 (Vacancy) as an Osan City Industrial Complex (hereinafter “Plaintiff Hospital”).

B. On May 7, 2001, the Plaintiff was exempt from the application of the provisions on hours of work, recess and holidays stipulated in Chapters 4 and 5 of the former Labor Standards Act (hereinafter referred to as “monst workers”) as the “persons engaged in surveillance work” under Article 61 subparag. 3 of the former Labor Standards Act (Article 63 subparag. 3 of the current Labor Standards Act), and Article 12(2) of the Enforcement Rule of the former Labor Standards Act (Article 281 of the Labor Ordinance of July 24, 2007; hereinafter the same shall apply) with respect to patient supervisors from the Defendant. In addition, the Plaintiff hospital has worked for 20 protective guards for 24 hours.

D. However, on September 14, 2015, the Defendant issued the instant disposition to retroactively revoke the Plaintiff hospital’s Plaintiff’s Plaintiff’s Plaintiff’s Plaintiff hospital’s approval of surveillance workers, on the ground that, as a result of the Plaintiff hospital’s investigation into the work environment of the Plaintiff hospital’s guardian, the Defendant did not neglect surveillance on the characteristics of the hospitalized patient, and carried out both tasks, other than the patient monitoring duties, concurrently and repeatedly, and the rest hours for which the Plaintiff could freely use are eight hours or more. As such, the Defendant cannot be deemed as a surveillance worker under Article 63 subparag. 3 of the Labor Standards Act.

[Reasons for Recognition] The entry of Gap evidence No. 2 and the purport of the whole argument

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The guardians working in the Plaintiff Hospital shall monitor most of their duties simply and assist with nurses, etc. on a intermittent basis, and do not require a special physical or mental tension. Duties such as outpatient treatment and delivery of patients, guidance at the time of participating in the program, and the receipt of goods, etc. are duties to be performed by the guardians in relation to patient surveillance. The guardians are guaranteed at least two hours of meal and at least nine hours of rest at night, and thus they constitute surveillance workers.

Even if the Defendant’s approval of the Plaintiff hospital was revoked, it is unreasonable to revoke the Plaintiff hospital’s approval retroactively prior to such revocation, as the Plaintiff hospital had the guardian performed the duties of providing meals, etc. from May 2015.

B. Facts of recognition

1) The duties and the forms of the Defendant’s work are the form in which the 16th of the 19th of the 19th of the 19th of the 19th of the 19th of the 19th of the 24th of the 19th of the 19th of the 19th of the 19th of the 19th of the 19th of the 19th of the 19th of the 20th of the 19th of the 20th of the 19th of the 19th of the 2nd of the 8th of the 8th of the 2nd of the 19th of the 2nd of the 19th of the 19th of the 2nd of the 1

The duties of the Plaintiff hospital's guardian under the Work Rules are defined as coercions, coercions, sick operation (in the event of accident prevention, visit, bathing management, replacement of a bath, meal management, smoking control, environmental adjustment, book-keeping guide, meal command, sponsing guide, entertainment activities, food supply, product inspection, patient interview, patient sanitary management, patient hygiene maintenance, religious participation, various treatment outlines and examination rooms, etc.), visiting objects inspection, care of sick items, facility inspection, etc.

In addition to the patient surveillance service as listed in the table below, the actual guardian's daily service status also includes the provision of assistance to doctors and nurses, medication assistance, daily tobacco and coffee, etc., distribution of outpatients, accompanying of patients, providing various programs and patient interviews, providing support, transporting patient meals and transporting backs to patients, physical check, such as an isolated patient's blood, sponse, patients' isolation and coercion, collection of laundry, replacement of refund, provision and collection of tools, while performing the patient surveillance service as the main duties of the doctor and nurse's nurse, medication assistance, medication assistance, daily tobacco and coffee, etc.;

A person shall be appointed.

It has been performing duties such as guidance, supervision, support, etc. for the overall daily life of patients, such as accompanying of patients, various programs, and visiting of patients, transporting of patients and transporting backs, such as the blood of patients suffering from isolation duress patients, patient response units, isolation and coercion of patients when in an emergency situation, collection of laundrys, replacement of laundrys, provision of guidance, supervision, and collection.

2) Working hours of the guardian;

The work hours of the Plaintiff hospital’s guardians are 24 hours of work on an employment contract, and they are 8 hours of work (27:00 minutes from 08:00 to 12:00 minutes from 11:00 to 12:00 minutes from 16:00 to 17:00 minutes from 24:00 to 05:00 minutes from 24:00 to 05:00 hours from 15:00), but the guardian is isolated from his/her duties at the time of his/her work, while his/her guardian is on the sick work site (24:00) at night, he/she was unable to use the patient’s condition for every 30:0 hours of general sick, and he/she did not have to use the patient’s condition for food transport, food distribution, pressure transport, etc. for the patient during his/her rest hours, and he/she did not use the patient at the time of his/her rest or at every 2 hours of rest.

3) The above tasks, forms, and working hours of the Plaintiff’s guardian were not significantly changed from the time when the Plaintiff obtained approval for exclusion from the application of surveillance workers to the guardian.

[Ground of recognition] Evidence Nos. 3, Evidence Nos. 4-1, 2, Eul evidence Nos. 1, 2, and 3, each of witness A, B, C, and D's testimony, the purport of the whole pleadings

C. Determination

1) Whether the guardian of the Plaintiff hospital constitutes a surveillance worker

Article 63 subparag. 3 of the Labor Standards Act and Article 10(2) of the Enforcement Rule of the same Act mean a person engaged in surveillance duties, and engaged in any work with a mental or physical skin in the state of the worker engaged in surveillance duties. Article 68(1) of the Labor Inspector Work Regulations (Ordinance of the Ministry of Employment and Labor No. 127) provides, “Where a person engages in labor with less mental or physical skin, such as water level security guards, security guards, or crew members at risk reduction: Provided, That this shall not apply where a high level of mental tension is required, although surveillance duties are performed but it is not possible to neglect surveillance of diving, where surveillance duties are performed for a short time due to its original duties or in an irregular manner, except where surveillance duties are performed repeatedly or concurrently, even if surveillance duties are performed.”

In other words, the following circumstances revealed by the above recognition: ① the Plaintiff hospital’s guardian remains in the sick zone for 24 hours as well as the protection of the patient’s safety and the prevention of accidents; in light of the characteristics of the patient hospitalized in the New Hospital Hospital, it cannot be deemed that the patient was engaged in mental and physical labor so that he/she could not neglect surveillance; ② the guardian’s assistance in patient surveillance as his/her main duties, such as aiding and abetting doctors and nurses, medication assistance, daily tobacco and coffee, etc.; ② the distribution of outpatients and nurses, outpatients such as outpatients, outpatients, outpatients, patient meals, transportation of patients and reflects transport by isolation patients; and ③ it is difficult to see that the patient’s request during the night-time and night-time-time-time-time-time-time-time-time-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related- workers.

2) According to the above facts of recognition as to whether retroactive cancellation is unfair or not, it is difficult to view that the contents of the work of the care company of the Plaintiff hospital were significantly changed before and after May 2015. Even in the Plaintiff’s assertion, it is merely that the care company explicitly provided the patient’s meal transport assistance, simple distribution, and exchange assistance after May 2015. As seen earlier, it is reasonable to view that the effect of the instant disposition taken against the care company of the Plaintiff hospital for the purpose of extinguishing its validity in order to correct erroneous recognition as the care worker for the care company of the Plaintiff hospital, which is difficult to deem as the care company of the Plaintiff to be a surveillance worker. Although the Plaintiff suffered disadvantage in the instant disposition, it is difficult to view that the care company’s degree is a strong case to justify the retroactive effect restriction compared to the need of public interest, such as that the care company should rectify the disadvantage that was not guaranteed with legitimate working hours, rests, holidays, etc. under the Labor Standards Act. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judges Lee Sung-ho