[1] Standard and method of determining whether an employee is a worker under the Trade Union and Labor Relations Adjustment Act / Whether an employee under the Trade Union and Labor Relations Adjustment Act is necessarily limited to a worker under the Labor Standards

[2] In a case where Gap corporation which conducts a business such as the development and education of learning sites filed an application for a remedy order on the ground that it constitutes unfair dismissal and unfair labor practices after concluding an entrusted business agreement with Eul, etc. which is a member of the Korea Learning Site Industry Union and is related to the management, recruitment, and education of learning site teachers, the case holding that Eul, etc. constitutes workers under the Trade Union and Labor Relations Adjustment Act, and the Korea Learning Site Industry Trade Union constitutes a trade union under the main sentence of Article 2 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act

[3] Method of determining whether an employer’s act constitutes an unfair labor practice as prescribed by the Trade Union and Labor Relations Adjustment Act, and the burden of proving unfair labor practice (=worker or trade union) / In a case where it is found that there are justifiable grounds for an employer to take unfavorable measures, such as disciplinary action or dismissal against an employee, etc., whether the employer’s unfavorable measures may be readily concluded to have been based on the intent of unfair labor practice

[1] Workers under the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) refer to those who engage in labor and receive wages or other income in return for labor under a subordinate relationship with others. Specifically, whether a labor provider’s income depends mainly on a specific business entity; whether a labor provider unilaterally determines the terms of a contract entered into with a specific business entity, including remuneration; whether a labor provider provides labor essential for a specific business entity to perform its business; whether a labor provider approaches the market through the specific business entity; whether a labor provider and a specific business entity’s legal relationship exist; whether a labor provider have continuous and continuous command and supervision relations between a labor provider and a specific business entity; and whether a labor provider receives wages or wages from a specific business entity; and whether a labor provider is the price for providing labor.

Unlike the Labor Standards Act enacted to regulate individual labor relations, the Trade Union Act was established for the purpose of maintaining and improving the working conditions and improving the economic and social status of workers through guaranteeing the three labor rights of workers under the Constitution. Considering the legislative purpose of the Trade Union Act and the definition of workers, etc., whether a person constitutes a worker under the Trade Union Act ought to be determined from the perspective of whether it is necessary to guarantee three labor rights in light of the substance of labor relations, and it does not necessarily mean to be limited to workers

[2] In a case where Gap corporation operating a business such as the development and education of learning sites filed an application for a remedy order on the grounds that it constitutes unfair dismissal and unfair labor practices after concluding an entrusted business contract with Eul, etc., which is a member of the Korea Learning Site Industry Union, which is a learning site teacher, and the management, recruitment, and education of learning site teachers, Eul, etc. were terminated thereafter, the case holding that Gap et al. concluded a contract with Gap's labor union under the Act on Labor Relations Adjustment and Labor Relations Adjustment and Labor Relations Adjustment as it seems that it is practically difficult for learning site teachers to concurrently engage in business, and since Gap's fees paid from Gap company are deemed as the principal income source of learning site teachers, it can be deemed that Gap company's main contents of the entrusted business contract, including remuneration, were unilaterally determined by Gap company's work site-related business, and Eul et al. had access to the market for the learning site development and learning site members through Gap's business, and Eul et al., concluded a contract with Gap et al., an exclusive labor union under the Act for the purpose of the Act.

[3] Whether an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act shall be comprehensively examined and determined by comprehensively examining all the circumstances to presume the existence of an employer’s intent to engage in unfair labor practice, and the burden of proving unfair labor practice lies in the worker or trade union asserting such intent. Therefore, where it is impossible to determine the existence of an employer because it is unclear whether an employer intended to engage in unfair labor practice exists even after having undergone necessary deliberation, the risks or disadvantages arising therefrom shall be borne by the employee or trade union asserting it. In this regard, if an employer took unfavorable measures, such as disciplinary action, dismissal, etc. against a worker, but it was revealed that there was a justifiable reason as a result of deliberation, it cannot be readily concluded that such unfavorable measures were taken against the employer’s intent to engage in unfair labor practice.

[1] Article 2 subparag. 1 of the Trade Union and Labor Relations Adjustment Act / [2] Article 2 subparag. 1, Article 81 subparag. 1, and 4 of the Trade Union and Labor Relations Adjustment Act / [3] Article 81 subparag. 1 of the Trade Union and Labor

[1] Supreme Court Decision 90Nu1731 Decided May 25, 1993 (Gong1993Ha, 1886), Supreme Court Decision 2005Da20910 Decided May 11, 2006 (Gong2006Sang, 1013), Supreme Court en banc Decision 2007Du4483 Decided March 24, 2011, Supreme Court Decision 2007Du4995 Decided June 26, 201 (Gong2015Ha, 1080) / [3] Supreme Court Decision 2005Du4120 Decided November 15, 2007; Supreme Court Decision 201Da7804 Decided February 13, 2014; Supreme Court Decision 201Da78804 Decided February 2514, 2014 (GongGong5664)

National Study Site Industry Workers' Union and eight others (Law Firm Inn, Attorneys Cho Jae-ju et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Human Education Co., Ltd. (Law Firm CSS, Attorneys Kim Shin-young, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu37274, 37281 decided August 20, 2014

Of the judgment of the court below, the part of the claim for the revocation of the decision on review of unfair labor practices by Plaintiffs 5, 6, 7, 8, 9, and Plaintiff National Union of Study Site Industry Union on July 19, 201 is reversed, and that part of the case is remanded to the Seoul High Court. The appeals by Plaintiffs 2, 3, and 4 and the remaining appeals by Plaintiffs 5, 6, 7, 8, 9, and Plaintiff National Union of Study Site Industry Workers are all dismissed. The costs of the appeal by Plaintiffs 2, 3, and 4, including the part resulting from the participation.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case principal details and key issues

A. Case principal details

The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) who conducts a project for the development and education of the learning site (hereinafter referred to as the “Plaintiff”) concluded an entrusted project agreement with the Plaintiffs (hereinafter referred to as “Plaintiff’s learning site teachers”) who are members of the Plaintiff’s National Study Site Industry Trade Union (hereinafter referred to as “Plaintiff’s Union”) on the management, recruitment, and education of the learning site teachers, and then terminated it.

The Plaintiffs filed an application for remedy with the Seoul Regional Labor Relations Commission on the ground that the Intervenor’s rescission of the consignment agreement constitutes unfair dismissal and unfair labor practices, but was dismissed on the ground that the Intervenor was not an employee or trade union and was not a party-qualified. The Central Labor Relations Commission dismissed the application for review.

B. Issues

The key issue of the instant case is: (a) whether Plaintiff Study Site Teachers constitute workers under the Labor Standards Act (ground of appeal No. 1); (b) whether Plaintiff Study Site Teachers constitute workers under the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”); and (c) whether Plaintiff Study Site Teachers constitute trade unions under the Trade Union Act; and (d) if Plaintiff Study Site Teachers constitute workers under the Trade Union Act, the termination of the consignment agreement made by the Intervenor constitutes unfair labor practices as provided by subparagraphs 1 and 4 of Article 81 of the Trade Union Act (

2. Regarding ground of appeal No. 1

Article 2(1)1 of the Labor Standards Act provides that “worker means a person who provides labor to a business or workplace for the purpose of wages regardless of the type of occupation,” and Article 2(1)5 of the Labor Standards Act provides that “wages means wages, salaries and other money or valuables, regardless of their titles, which the employer pays to the worker in compensation for work.”

Determination of whether a labor provider is a worker under the Labor Standards Act ought to be based on whether the form of a contract is an employment contract or a contract for employment, whether a labor provider provides labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Determination of whether a dependent relationship exists should be made by comprehensively taking account of the economic and social conditions, such as whether an employer determines the content of work and is subject to rules of employment or employment regulations, whether an employer is subject to considerable direction and supervision in the course of performing work, whether an employer is designated working hours and place of work, whether an employer is subject to detention, whether a labor provider is capable of operating his/her business on his/her own account, such as owning equipment, raw materials, working tools, etc., or having a third party employ and act on behalf of the employer, whether the employer has exclusive nature of work, basic pay or fixed wage, whether the nature of remuneration has been determined, whether the wage was withheld at source, whether the employer is recognized as an employee under the Act on Social Security System (see Supreme Court Decision 2007Da26279, etc.).

Examining the record in accordance with the above legal doctrine, the lower court was justifiable to have determined that Plaintiff Professor was not an employee under the Labor Standards Act. In so doing, the lower court did not err by misapprehending the legal doctrine on workers under the Labor Standards Act, or by exceeding the bounds of free evaluation of evidence

3. Regarding ground of appeal No. 2

A. Whether it constitutes an employee and a trade union under the Trade Union Act

(1) Article 2 Subparag. 1 of the Trade Union Act provides that “worker means a person who lives on wages, salary, or any other income equivalent thereto, regardless of the type of occupation.” The main text of Article 2 Subparag. 4 provides that “trade union means an organization or associated organization of workers, which is organized by workers as their principal agent, with the purpose of maintaining and improving their working conditions and enhancing their economic and social status by independently and separately combining them.”

Workers under the Trade Union Act refer to those who engage in labor and live on a wage or other income in return for labor under a subordinate relationship with others. Specifically, whether a labor provider’s income is mainly dependent on a specific business operator, whether a labor provider unilaterally determines the terms of a contract entered into with a labor provider, including remuneration, or whether a labor provider provided an essential labor to a specific business operator, access the market through a specific business operator’s business, whether a labor provider and a specific business operator’s legal relationship exists to a considerable extent, whether a labor provider have a direction and supervision relationship between an employer and a labor provider, and whether a labor provider receives wages or other income from a specific business operator, etc. (see Supreme Court Decisions 90Nu1731, May 25, 1993; 2005Da20910, May 11, 2006).

Unlike the Labor Standards Act enacted to regulate individual labor relations, the Trade Union Act was established for the purpose of maintaining and improving the working conditions and enhancing the economic and social status of workers through guaranteeing the three labor rights of workers under the Constitution. Considering the legislative purpose of the Trade Union Act and the definition of workers, etc., whether a person constitutes a worker under the Trade Union Act ought to be determined from the perspective of whether it is necessary to guarantee three labor rights in light of the substance of labor provision relations, and it does not necessarily mean that a person is limited to a worker under the Labor Standards Act (see Supreme Court Decisions 2007Du4483, Mar. 24, 2011; 201Da78804, Feb. 13, 2014; 2007Du4995, Jun. 26, 2015).

(2) Examining the following circumstances revealed through the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, it is reasonable to deem that Plaintiff’s learning instructors constitute workers under the Trade Union Act.

① In light of the content of the work, preparation for the work, time necessary to perform the work, etc., it seems that the Plaintiff’s learning site teachers are practically difficult to concurrently engage in the work, and the fees paid by the Intervenor were the principal income source of the Plaintiff’s learning site teachers.

② Since an intervenor entered into a standardized consignment agreement with many and unspecified learning site teachers, it may be deemed that the major contents of the consignment agreement, including remuneration, were unilaterally determined by the intervenor.

③ Labor provided by the Plaintiff’s learning site teachers was essential for the Intervenor’s performance of the Intervenor’s study site-related business, and the Plaintiff’s learning site teachers have access to the market on the development of learning site and the management and education of the learning site members through the Intervenor’s business.

④ Since the Plaintiff’s study site teachers entered into an entrusted project agreement with the Intervenor on a one-year basis and automatically extended the term of the contract, the relationship of the entrusted project was continued, and it seems that the Intervenor was exclusively dedicated to the Intervenor.

⑤ A participant conducted practical education for new learning site teachers, assigned new learning site teachers to a specific unit organization through the head of the Secretariat and the head of the unit organization, and allocated management members. Although it is distinguished from the rules of employment applicable to general employees, there was a work guidelines applicable to Plaintiff learning site teachers. An intervenor produced and distributed a learning report to Plaintiff learning site teachers, and issued a standard essential work. On the last day of each month, the study site teachers regularly submitted the materials verifying the payment of student list and membership fees to the director general of the branch office and periodically submitted the materials verifying the student list and the payment of membership fees to the director general of the branch office, and entered the student list, diagnosis evaluation results, and membership fees collection status into the intervenor’s website, and written one time more than two to three months. In addition, the intervenor conducted a regular instruction to Plaintiff learning site teachers at the time of holding the membership management card and management status, and conducted an inquiry and ability improvement process by participating the Plaintiff’s learning site teachers at three am a week. In light of these circumstances, even if the Plaintiff’s learning site teachers were under the direction and supervision of the Labor Standards Act.

6. The Plaintiff learning ground teachers received fees from the Intervenor as compensation for labor provided by the Intervenor, such as management and education of the learning ground members, maintenance of the existing members, and invitation of members.

7) Even if a worker is not acknowledged as an employee under the Labor Standards Act, taking into account the legislative purport of the Trade Union Act that provides that workers shall not be placed under the premise that they belong to a specific business entity, but shall include a labor provider under the “type of contract other than employment” and the legislative purport of the Trade Union Act that intends to protect workers by securing equal negotiating power with the definition of workers under the Trade Union Act, there is a need to recognize the Plaintiff’s learning site teachers, who provide essential labor to the intervenor’s business and form an economic and organizational subordinate relationship with the intervenor as an employee under the Trade Union Act. In addition, guaranteeing three labor rights, such as the right to collectively cut off to the Plaintiff’s learning site teachers who provide labor to the intervenor as an economically weak position, by guaranteeing three labor rights, such as the right to negotiate the terms of labor provision on an equal basis

(3) The Plaintiff Union is a trade union under the main text of Article 2 subparag. 4 of the Trade Union Act, since it is an organization that is organized with the purpose of maintaining and improving the working conditions and promoting the improvement of the economic and social status of the learning site teachers, who are workers under the Trade Union Act, independently and collectively.

B. Whether unfair labor practice with respect to Plaintiffs 5, 6, 7, 8, 9, and Plaintiff Union was constituted (related to the Defendant’s retrial ruling on July 19, 201)

Article 81 (1) of the Trade Union Act provides that the act of unfavorable treatment for workers' joining to a trade union, organization, and other legitimate acts for the work of a trade union shall be subject to the employer's unfair labor practices.

According to the reasoning of the judgment below and the record, the intervenor terminated the consignment agreement with the plaintiff 5, 6, 7, 8, and 9 on the ground that the intervenor expressed his/her intent to support operating expenses to the plaintiff union while maintaining the membership of the plaintiff union.

As seen earlier, Plaintiffs 5, 6, 7, 8, and 9 correspond to workers under the Trade Union Act, and thus, the Intervenor’s rescission of the consignment agreement with the above Plaintiffs on the said grounds constitutes an act prescribed by Article 81 subparag. 1 or 4 of the Trade Union Act, namely, an act that gives disadvantages on the ground of joining the Plaintiff Union or an act of controlling and joining the Plaintiff Union.

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court determined that Plaintiff 5, 6, 7, 8, and 9 did not constitute workers under the Trade Union Act and the Plaintiff Union was not a trade union under the Trade Union Act, and determined that the aforementioned Plaintiffs and the Plaintiff Union did not have the standing to be a party to an application for remedy for unfair labor practice. In so determining, the lower court erred by misapprehending the legal doctrine on workers and trade unions under the Trade Union Act, or by exceeding the bounds of

C. Whether unfair labor practices have been established against Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff Union (related to the Defendant’s retrial ruling on May 12, 2011)

(1) Whether an employer’s act constitutes an unfair labor practice under the Trade Union Act shall be determined by comprehensively examining and determining all the circumstances to presume the existence of an employer’s intent to engage in unfair labor practice. The burden of proving unfair labor practice lies in the worker or trade union asserting it. Therefore, where it is impossible to determine the existence of an employer because it is unclear whether an employer intended to engage in unfair labor practice exists even after having undergone necessary deliberation, the risks or disadvantages arising therefrom shall be borne by the employee or trade union asserting it. In this regard, if an employer took unfavorable measures, such as disciplinary action, dismissal, etc. against a worker, but it was revealed that there was a justifiable reason as a result of deliberation, it cannot be readily concluded that such unfavorable measures were taken against the employer’s intent to engage in unfair labor practice (see Supreme Court Decision 2005Du4120, Nov. 15, 2007).

(2) The lower court denied the standing as a party to an application for remedy against unfair labor practice on the grounds that the Plaintiff 2, 3, 4, and Plaintiff Union were the rest of the Plaintiffs, and did not separately determine whether to establish the unfair labor practice.

As seen earlier, Plaintiffs 2, 3, and 4 fall under the workers under the Trade Union Act, and the Plaintiff Union constitutes a trade union under the Trade Union Act, and the above Plaintiffs are eligible to seek relief from unfair labor practices. However, examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the legal principles as seen earlier, it cannot be readily concluded that the Intervenor’s rescission of the consignment agreement with Plaintiffs 2, 3, and 4 was based on the Intervenor’s intent to engage in unfair labor practices. Therefore, it is difficult to deem that the Intervenor falls under Article 81 subparag. 1

① Upon the conclusion of the third collective agreement between the Intervenor and the Plaintiff Union, the said Plaintiffs demanded the invalidation and re-revision of the said collective agreement on the ground that the said collective agreement unfairly lowered the fees that the learning-based teachers would receive. The Plaintiffs participated in illegal farming and occupied the private land of the company, and participated in destroying the company’s property or exercising violence against the executives and employees.

② As to the above acts, the above Plaintiffs were convicted of violation of the Act on Joint Injury, Joint Building Intrusion, Assembly and Demonstration, etc.

③ The Intervenor terminated the consignment agreement with the said Plaintiffs on the ground that the said Plaintiffs did not maintain the membership of the Plaintiff Union but committed an illegal act for which the conviction became final and conclusive.

(3) As such, the lower court erred by misapprehending the legal doctrine on workers and trade unions under the Trade Union Act, which determined that Plaintiffs 2, 3, and 4 did not constitute workers under the Trade Union Act and the Plaintiff’s Union did not constitute a trade union under the same Act. However, insofar as the termination of a consignment agreement with Plaintiffs 2, 3, and 4 cannot be deemed as an unfair labor practice by the Intervenor, the lower court’s conclusion rejecting the Plaintiff’s claims related thereto is justifiable. Accordingly, the lower court’s error did not adversely affect the conclusion of the judgment, and thus, this part

4. Conclusion

Therefore, among the judgment of the court below, the part on the claim for revocation of the decision on review with respect to unfair labor practice on July 19, 201 by Plaintiffs 5, 6, 7, 8, 9, and Plaintiff Union is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeals by Plaintiffs 2, 3, and 4 and the remaining appeals by Plaintiffs 5, 6, 7, 8, 9, and Plaintiff Union are all dismissed as it is without merit. The costs of appeal by Plaintiffs 2, 3, and 4 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)