[1] In regard to the working conditions of workers deemed to have concluded a non-fixed-term employment contract pursuant to Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, whether the rules of employment, etc. equally applied to workers who signed an employment contract without the fixed-term employment period (affirmative in principle)

[2] The purport of Article 97 of the Labor Standards Act that grants the mandatory and supplementary effect to the rules of employment as the minimum standard

[1] Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.” As to the working conditions of an employee deemed to have entered into an employment contract without a fixed period of time pursuant to such provision, the rules of employment, etc. applicable to the employee shall equally apply unless otherwise specified. Specific reasons are as follows.

(1) Article 4(2) of the Fixed-term Employment Act does not stipulate that the effect of a case where an employer employs a fixed-term worker for more than two years shall be null and void only on the basis of determining the term of the relevant employment contract, or that the remainder of the existing employment conditions except the term of the employment contract

(2) Article 8(1) of the Fixed-term Workers Act provides that “An employer shall not give discriminatory treatment to workers who have entered into an employment contract with no fixed period of time engaged in the same or similar kind of work on the ground that they are fixed-term workers.” The language and text of the provision prohibit only discriminatory treatment against fixed-term workers, but considering the purport of the provision and the concept of fairness, the working conditions of workers deemed to have entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Workers Act shall not be unfavorable than those applied to workers who entered into an employment contract without a fixed period of time engaged in the same or similar work, unless there are other special circumstances.

③ A fixed-term employment law aimed at contributing to the sound development of the labor market by strengthening the working conditions of fixed-term workers shall, in principle, limit the term of employment for fixed-term workers to two years, and the violation thereof shall be deemed an employee who has entered into an employment contract without a fixed period of time instead of having the penal provision (Articles 1 and 4(1) and (2)). In full view of the purpose of such fixed-term employment law, relevant regulations, structure and purport, details of enactment, etc., if a worker enters into an employment contract without a fixed period of time engaged in the same or similar kind of work within the employer’s business or workplace, it is reasonable to interpret that the working conditions applicable to such worker shall be equally applied to the worker who is deemed to have entered into an employment contract without a fixed period of time under Article 4(2

[2] Article 97 of the Labor Standards Act provides that “Any labor contract that prescribes the working conditions which fall short of the standards stipulated in the employment rules shall be null and void. In this case, the invalidated part shall conform to the standards stipulated in the employment rules.” The above provision is established to prevent workers in subordinate position from taking over the working conditions which fall short of the standards stipulated in the employment rules by granting the mandatory and supplementary effect as the minimum standard to the employment rules, thereby invalidating the part falling short of the employment rules among the labor contracts and complying with the standards stipulated in the employment rules.

[1] Articles 1, 4, and 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [2] Article 97 of the Labor Standards Act

[2] Supreme Court Decision 2018Da200709 Decided November 14, 2019 (Gong2020Sang, 12)

Plaintiff 1 and six others (Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

Daejeon Cultural Broadcasting Co., Ltd. (Bae & Yang LLC, Attorneys Park Sang-hoon et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2014Na11589 decided November 26, 2015

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to Daejeon High Court. All of the Defendant’s appeals are dismissed.

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

1. Judgment on the ground of appeal No. 1 by the plaintiffs

A. 1) Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term and Part-Time Workers”) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the grounds under the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.” As to the working conditions of an employee deemed to have entered into an employment contract without a fixed period of time under such provision, the rules of employment, etc. applicable to the employee, unless otherwise specified, shall apply. The specific reasons are as follows.

A) Article 4(2) of the Fixed-term Workers Act does not stipulate that the effect of a case where an employer employs a fixed-term worker for more than two years shall be null and void only on the basis of setting the term of the relevant employment contract, or that the remaining existing employment conditions excluding the term of the employment contract are still valid.

B) Article 8(1) of the Fixed-term Workers Act provides that “An employer shall not discriminate against a fixed-term worker in comparison with a worker who has entered into an employment contract without a fixed period of time engaged in the same or similar kind of work at the relevant business or workplace on the ground that he/she is a fixed-term worker.” However, considering the purport of the provision and the concept of fairness, it shall be interpreted that the working conditions of a worker deemed to have entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Workers Act shall not be less unfavorable than the working conditions applied to a worker who entered into an employment contract without a fixed period of time engaged in the same or similar work, unless there are

C) The fixed-term employment law aimed at contributing to the sound development of the labor market by strengthening the working conditions of fixed-term workers shall, in principle, limit the term of employment of fixed-term workers to two years, and the violation thereof shall be deemed an employee who has entered into an employment contract without a fixed period of time instead of setting the penal provision (Articles 1 and 4(1) and (2)). In full view of the purpose of the fixed-term employment law, the structure and purport of the relevant regulations, and the developments leading up to the enactment thereof, if a worker enters into an employment contract without a fixed period of time engaged in the same or similar work within the employer’s business or workplace, it is reasonable to interpret that the working conditions applicable to the worker shall be equally applied to the worker who is deemed to have entered into an employment contract without a fixed period of time under Article 4(

2) Article 97 of the Labor Standards Act provides that “Any labor contract that prescribes the working conditions which fall short of the standards prescribed by the employment rules shall be null and void. In such cases, the invalidated part shall conform to the standards prescribed by the employment rules.” The above provision provides that if the working conditions prescribed by the employment rules fall short of the standards prescribed by the employment rules, the part which falls short of the employment rules under the employment rules among the labor contracts shall be null and void as a minimum standard and shall be in accordance with the standards prescribed by the employment rules, thereby preventing any worker in subordinate position from taking over the working conditions which fall short of the standards prescribed by the employment rules by lending the form of agreement between individual labor and management (see Supreme Court Decision 2018Da200709, Nov. 14, 2019).

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

1) The Plaintiffs were employed as fixed-term workers in the Defendant Company, and were regarded as workers who entered into an employment contract without a fixed period of time between March 201 and July 201 pursuant to Article 4(2) of the Fixed-term Workers Act.

2) The Defendant’s rules of employment, the personnel regulations based thereon, and the remuneration regulations have been applied differently to all the employees who concluded an employment contract without a fixed period of time (hereinafter “regular employees”) who had existed prior to being regarded as an employee who entered into an employment contract without a fixed period of time.

3) The Defendant, from July 1, 2007 when the Fixed-term Employment Act was enforced, prepared separate rules of employment setting working conditions for persons deemed workers who have concluded an employment contract without a fixed period of time as the Plaintiffs from the date of closing argument in the lower court.

4) Even after deeming the Plaintiffs to be an employee who entered into an employment contract without a fixed period of time, the Defendant paid wages after preparing an employment contract in the same form as at the time the Plaintiffs were fixed-term workers. Accordingly, compared to regular workers to which the Defendant’s employment rules, etc. apply, the Plaintiffs received 80% basic wages and bonuses, and did not receive continuous work allowances, and the self-driving subsidies received less than KRW 100,000 per month, and did not receive regular salary classes after May 2012.

5) Meanwhile, compared with regular workers who are in charge of the same position in the same department as the plaintiffs and provide labor, there was no particular difference in all aspects, such as the content and scope of work, quality and quantity of work, etc.

C. Examining these circumstances in light of the legal principles as seen earlier, the Plaintiffs deemed to have entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Employment Act shall be deemed to have taken charge of the same duties within the same department and apply the working conditions stipulated in the Defendant’s employment rules, etc., which apply to regular workers providing the same kind of work. Accordingly, the part of an employment contract that sets working conditions short of the criteria stipulated in the Defendant’s employment rules, etc. is null and void, and the part is subject to the criteria stipulated in the employment rules, etc., so the Plaintiffs should be paid basic wages, bonuses, continuous service allowances, and self-driving

D. Nevertheless, the lower court determined that the Defendant’s employment rules, etc. do not apply to the Plaintiffs on the sole basis of the circumstances indicated in its holding, and rejected the Plaintiffs’ claim seeking reimbursement of the difference on the ground that the payment of basic wages and bonuses to the Plaintiffs below regular workers does not violate Article 6 of the Labor Standards Act. In so determining, the lower court erred by misapprehending the legal doctrine on the working conditions of workers deemed to have concluded an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Workers Act, thereby adversely affecting

2. Judgment on the Defendant’s grounds of appeal

The Defendant’s assertion in the grounds of appeal is premised on the premise that the Defendant’s employment rules, etc. are not applied to the Plaintiffs, and that the Defendant is obligated to pay the Plaintiffs with continuous service allowances and self-driving subsidies, which are not paid to the Plaintiffs, erred by misapprehending the legal principles on the interpretation of labor contract, Article 6 of the Labor Standards Act, social status, determination of comparable workers, and reasonable grounds for discrimination, etc.

However, as seen earlier, the Defendant’s rules of employment are applied to the Plaintiffs, and as a result, the Plaintiffs should be paid basic pay, bonus, continuous service allowance, and self-driving subsidy in accordance with the criteria set by the Defendant’s rules of employment, etc. In the end, the Defendant’s allegation in the grounds of appeal on a different premise is without merit without further review.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part against the plaintiffs among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by

Justices Kim Jae-hyung (Presiding Justice)