[1] Requirements for a third party's employee to be employed by the plaintiff employer and perform the third party's work at the third party's place of business

[2] The standard for determining whether the Plaintiff employer constitutes “temporary placement of workers” subject to the Act on the Protection, etc. of Temporary Agency Workers where the Plaintiff employer allows workers to perform the work for a third party

[3] In a case where Gap et al., upon entering into an employment contract with Gap et al., sought confirmation of the status of workers against Eul et al., who provided passenger services as a train crew pursuant to the consignment agreement entered into with Eul et al., the case affirming the judgment below which denied implied employment contract relationship between Byung et al. and Eul et al. and did not constitute a temporary employment relationship

[1] Article 2 (1) 1 of the Labor Standards Act / [2] Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers / [3] Article 2 (1) 1 of the Labor Standards Act, Article 664 of the Civil Act, Article 2 subparagraph 1 of the Act on the Protection, etc

[1] Supreme Court Decision 2008Du4367 decided July 22, 2010 (Gong2010Ha, 1664)

See Attached List of Plaintiffs (Attorney Choi Sung-ho et al., Counsel for the plaintiff-appellant)

Korea Railroad Corporation (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na78974 decided October 5, 2012

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. A. In order for a person employed by the Plaintiff employer to be a third party’s employee who performs the third party’s work at the third party’s workplace, the existence of the Plaintiff’s employer is merely a formal and clear purpose, such as having no identity or independence as an employer, and the existence of the Plaintiff’s employer can be deemed as identical to the third party’s labor agency. In fact, the relevant employee is in a subordinate relationship with the third party and is a third party and the party who actually pays wages is a third party and the party who provides labor is also the third party, and thus, an implied labor contract relationship between the relevant employee and the third party is established (see, e.g., Supreme Court Decision 2008Du4367, Jul. 22, 2010).

B. Meanwhile, under Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Temporary Agency Act”), a worker dispatch 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 worker temporary agency contract while maintaining the employment relationship.

In a case where the plaintiff's employer requires a certain worker to perform the work for a third party, whether the legal relation is a temporary placement of the worker subject to the Dispatch Act does not go against the name or form of the contract attached by the party, but rather, whether the third party directly or indirectly orders the worker concerned to make binding instructions on the performance of the work itself, or whether the worker concerned is actually incorporated into the third party's business, such as direct and joint work consisting of one working group of the worker belonging to the third party, or not, whether the worker's employer exercises the power to independently determine the number of workers, education and training, work hours, leave, inspection of work attitude, etc., whether the contract purpose is determined specifically as the performance of limited work, and the work entrusted by the worker concerned is distinct from that of the worker belonging to the third party, and whether such work is professional and technical, and whether the plaintiff's employer has an independent business organization or facility necessary to achieve the purpose of the contract.

2. After compiling the evidence, the lower court determined that: (a) the Red K-based Foundation and the Korea Railroad Distribution Co., Ltd. (hereinafter referred to as “railroad crew, etc.”) established the headquarters or headquarters for the KTX passenger service business; (b) the railroad distribution, etc. directly employed the Plaintiffs, and reflects the results of the education and assessment of the female crew, etc. in accordance with its own plan and standards; (c) the railroad distribution, etc. established the guidelines for the operation of high-speed crew, including the details of the employment, service, remuneration, and dismissal of the crew; and (d) directly exercised the personnel rights of the Korean Railroad crew, such as disciplinary action, on the other hand, it is difficult for the Plaintiffs to separately entrust the duties of the Plaintiff to the Plaintiff by contract with the train team leader, who was in charge of the Plaintiff’s work on the part of the Plaintiff; and (e) it is difficult for the Plaintiff to directly engage in the work on the part of the Plaintiff, who was in charge of the Plaintiff’s work on the part of the Plaintiff’s work on the part of the Plaintiff.

In light of the above legal principles and records, the court below is just in holding that the court below's decision that the railroad distribution et al. independently operated the KTX passenger service business and independently exercised the personnel rights of the KTX female crew members pursuant to each consignment agreement concluded with the defendant, and that it does not constitute a temporary agency relationship with the purport that it did not constitute a temporary agency relationship with the purport that the plaintiffs and the defendant were justified in denying the establishment of an implied labor contract relationship between the defendant and the defendant. Furthermore, the duties of the KTX crew and the train team leader were divided, and there was no binding command and order of the defendant against the KTX female crew, and there was no binding command and order of the defendant against the KTX female crew, and that the decision of the court below did not constitute a temporary agency relationship

Therefore, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on independence in business management related to disguised contracts, independence in personnel labor management, and direction and order of the user company in temporary placement, as alleged in the grounds of appeal.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Lee In-bok (Presiding Justice)