(영문) 서울중앙지방법원 2017.6.15. 선고 2016가합517279 판결

The defendant shall pay to the plaintiffs 5% interest per annum from January 1, 2017 to the delivery date of a copy of the claim purport and the application for modification of the cause of the claim in this case, and 15% interest per annum from the next day to the date of full payment.

Reasons

1. Facts of recognition;

A. Status of the parties

1) Since the establishment of the Human Resources Bank in 1996, each employment center belonging to the Ministry of Employment and Labor under the Defendant’s control employed non-public officials in various types of occupations as one-year fixed-term workers in line with new projects, in order to strengthen the employment infrastructure, most of them were converted into an inorganic contract worker.

2) Each employment center’s human resources structure is divided into public officials (administrative office consultation), and non-public officials. Non-public officials were composed of six types of occupations: vocational counselors, office workers, job offers counselors, training counselors, job-related meritorious key counselors, and employment support honorary counselors.

3) The Plaintiffs, as a inorganic contract worker, worked as office workers, job offers counselors, and training counselors (hereinafter referred to as “office workers, etc.”) at each employment center.

B. The Ministry of Employment and Labor, for the efficient management of human resources of the Employment Center’s non-official job classification integration, promoted the “Employment Center’s non-official job classification integration”. The Ministry of Employment and Labor newly established the “general” class as the subordinate class of the job classification system of a job counselor (pre-liability - appointment - senior) and integrated the office staff, job offers counselors, training counselors, and employment achievement certificate counselors into the general class among the job counselors. The Plaintiffs were transferred to the job counselors (general) on April 27, 2015.

C. After the integration of occupational categories, the career counselors were to actively operate the promotion system between the classes of job counselors. Considering the minimum number of years required for promotion for each class, the promotion system was to be promoted to a general counselor (not less than three years) / former counselors (not less than three years), / Appointment Counselors (not less than three years), / Senior Counselors (not less than four years), and the persons who were transferred to a general counselor as of April 27, 2015 were able to be promoted since 2019 when four years have elapsed since the transition.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, 12, 15, 27, Eul evidence 12, the purport of the whole pleadings

2. The plaintiffs' assertion

(a) argument that public officials of Grades 8 and 9 in the service of counseling service are comparable (main assertion);

The Defendant paid a fixed meal allowance, holiday allowance, civil petition allowance, good attendance allowance, allowances for work, welfare points, performance bonus, etc. to public officials in 8, 9, and administrative service in the employment center. However, the Plaintiffs in charge of the same or similar work are not paid each of the above allowances or are paid only for a very low amount without reasonable grounds. This is in violation of Article 6 of the Labor Standards Act. The Defendant is obliged to pay the Plaintiffs the amount of compensation for tort or damages for delay. The Defendant is obligated to pay each of the following money and damages for delay.

(b) argument that the full-time vocational counselor is comparable (preliminary assertion).

Even if there is no assertion against the public officials of Grades 8, 9 and 9, the Defendant paid welfare points and performance bonus to full-time vocational counselors, but only pays a lower amount without reasonable grounds to the Plaintiffs in charge of the same or similar work as above. This is in violation of Article 6 of the Labor Standards Act. The Defendant is obligated to pay each money as stated in the column of the claim amount No. 3 of Annex 2's Schedule of Claim Amount by Plaintiff as compensation for tort or wages. Furthermore, the fixed amount meal expenses, life-saving leave expenses, civil petition allowances, good attendance allowances, and fixed-time allowance additional charges are 8, 9 counseling and public officials of Grade 8, 9, welfare points and performance bonus are dedicated to the previous vocational counselors, and the Defendant is obligated to pay damages for delay to the Plaintiffs.

3. Determination

A. Determination as to the assertion that the public officials of Grades 8 and 9 in the counseling service are subject to comparison (main assertion)

1) Whether it constitutes a social status under Article 6 of the Labor Standards Act

Article 6 of the Labor Standards Act provides that the term “social status” under the above provision shall not be discriminated against the working conditions on the grounds of gender, religion, and social status. The term “social status” refers to a position of long-term occupation in society, which entails a certain social evaluation. As such, the status of an employment counselor, such as the Plaintiffs, constitutes a social status with a continuous and fixed nature that cannot be changed by the employee’s own intent or capacity display within the workplace.

2) Whether there is a violation of prohibition of discriminatory treatment

A) Relevant legal principles

(1) The term “discriminatory treatment” under Article 6 of the Labor Standards Act refers to a case in which norms, such as law, are determined as to whether or not such norms infringe constitutional equality, and, in cases where the norms are differently treated as different in essence, it cannot be said that there exists a discrimination itself. Therefore, in order to constitute discriminatory treatment prohibited under the Labor Standards Act, the person asserting discrimination as the premise thereof and the person who is compared thereto should, in essence, belong to the same comparative group (see Supreme Court Decision 2013Da1051, Oct. 29, 2015).

However, in order to determine whether the comparable person belongs to the same comparable group as the "inherently identical group" in order to determine whether to infringe the constitutional right to equality under the law, only physical characteristics or realistic aspects, such as the inherent characteristics of the compared group itself or the characteristics of duties, shall not be considered. Likewise, as with the constitutional provisions related to the comparison and the normative explanation of the meaning and purpose of the relevant legal provisions, it is reasonable to consider not only the forms of employment of workers in comparison, the contents and scope of duties, and responsibility of the relevant comparative group, but also the circumstances that are considered as the grounds for discriminatory treatment with the content and purpose of the relevant treatment.

(2) In addition, even if the comparable person who belongs to an "inherently the same comparative group" and the comparable person are treated differently from an "inherently the same comparable group, such treatment should be deemed to be unfavorable without justifiable grounds, and the "discriminatory treatment" under Article 6 of the Labor Standards Act may be deemed to constitute "discriminatory treatment". "Where there is no reasonable ground" in this context means where there is no need to treat an employee differently, or where the method, degree, etc. is inappropriate even if it is deemed necessary to treat an employee differently. Furthermore, the existence of reasonable grounds shall be determined by comprehensively taking into account the details of the unfavorable treatment in question and the circumstances based on the employer's reasons for unfavorable treatment (see Supreme Court Decision 201Du7045, Oct. 25, 2012).

B) Determination

The Defendant paid a fixed meal allowance, holiday allowance, civil petition allowance, good attendance allowance, fixed-time allowance, welfare points, performance bonus to public officials in 8 and 9 in counseling service, and performance bonus. However, the Plaintiffs did not pay a fixed meal allowance, holiday allowance, civil petition allowance, good attendance allowance, and additional payment for good attendance allowance, and there is no dispute between the parties concerned. However, considering the following: (a) evidence Nos. 2 through 5, 12, and (b) evidence Nos. 1 through 4, 8, 9, 10, 13, and 14 (including a serial number) and the whole purport of the arguments, it is difficult to view that public officials in 8, 9, and 9, counseling service and public officials in 8, 9, and 9, and public officials in administrative service were essentially the same group; and (b) the Defendant violated the principle of equality and employment of the Plaintiffs and public officials in counseling service and public officials in 8, 9, and 9, and the principle of equality and employment of the Labor Standards Act without reasonable grounds.

Around November 207, job counselors (vocational counselors) with more than three years’ work experience at the employment center. In order to become job counselors, they need to be qualified as job counselors under the National Technical Qualifications Act, or who have obtained a four-year university or higher degree under the Higher Education Act, or who has worked for a high school graduate or higher-level local labor office for three years or more. They also need to be employed by documents, writing (the first society, the second employment relationship law), and interview for the employment of public officials. On the other hand, those who have been transferred to the employment information network as job counselors (general), such as the plaintiffs, have obtained qualifications for job-related public officials and job-related public officials, such as information and communication (information/technical/technical/functional skills) under the National Technical Qualifications Act; those who have obtained qualifications for job-related public officials; those who have not obtained qualifications for job-related public officials or job-related public officials; those who have not obtained qualifications for job-related public officials or job-related public officials, and those who have obtained qualifications for job-related public officials or job-related public officials.

(3) Unlike vocational counselors, public officials of Grades 8 and 9 in counseling service and public service are subject to the application of the State Public Officials Act and the provisions on the service of State public officials and require the duty of good faith, the duty of obey, etc. of public officials, and the

B. Determination as to the assertion (preliminary assertion) that the full-time vocational counselor is comparable

1) Whether it constitutes a social status under Article 6 of the Labor Standards Act

Article 6 of the Labor Standards Act provides that the term "social status" in the above provision shall not be discriminated against the working conditions on the grounds of gender, religion, and social status. The term "social status" means a position of long-term occupation in society, which entails a certain social evaluation, and according to the aforementioned facts recognized as above, the status of a general counselor, such as the plaintiffs, is only one of the classes within a job counselor, and it is difficult to view that the status of a general counselor, such as the plaintiffs, is limited to a position within a job counselor, and may be promoted to a full-time counselor after having served at the minimum four years as a general counselor after having served as a general counselor, and thus,

2) Sub-committee

Therefore, the plaintiffs' above assertion on the premise that general counselors are social status is without merit.

4. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so decided as per Disposition.