[1] In cases where a user company who violated the restriction on the dispatch period under the Act on the Protection, etc. of Temporary Agency Workers, which was amended by Act No. 8076 of Dec. 21, 2006, fails to perform the duty of direct employment, whether the temporary agency worker has a judicial right to seek a judgment against the user company in lieu of his/her expression of intent of employment (affirmative), and whether a direct employment relationship exists between the user company and the temporary agency worker after the judgment becomes final and conclusive (affirmative)

[2] Where a user company allows a temporary agency worker to continue to perform his/her duties in violation of the restriction on the period of secondment, whether the application of Article 6(3) main sentence of the former Act on the Protection, etc. of Temporary Agency Workers or Article 6-2(1) of the later amended Act may be excluded solely on the ground that the temporary work agency is changed during the period of secondment

[1] Article 6(3) of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006) provides that “If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiry of the two-year period.” (hereinafter “direct employment deeming provision”), if the user company violates the restriction on the direct employment period, the direct employment relationship between the user company and the temporary agency worker should be established immediately. However, the amended Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Dispatch Act”) instead of the direct employment deeming provision, provides that “if a user company continues to use a temporary agency worker for more than two years, the relevant temporary agency worker shall be directly employed” (hereinafter “direct employment obligation provision”). Therefore, the user company violating the restriction on the temporary agency worker period under the Dispatch Act has the duty to directly employ the temporary agency worker until the decision on direct employment is finalized. Therefore, the direct employment relationship between the user company and the direct employment relationship is established.

[2] The main sentence of Article 6(3) of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006) or Article 6-2(1) of the amended Act on the Protection, etc. of Temporary Agency Workers (hereinafter “direct employment obligation provision”) provides for the legal relationship between the user company and the user company regarding the act of the user company continuously using the temporary agency in violation of the restriction on the period of service, separate from the administrative supervision or punishment, and the direct employment relationship between the user company and the temporary agency worker in a judicial relationship between the user company and the user company, in order to prevent commercialization and long-termization of the temporary agency worker, and thereby establish the legal effect and the legal effect of the temporary agency worker’s temporary agency worker’s employment stability. Thus, if the user company does not directly have any direct relation with the temporary work agency and does not require the identity of the temporary work agency during the period of service as a requirement of application. Thus, if the user company allows the temporary agency worker to continue to work in violation of the restriction, barring special circumstances.

[1] Article 6 (3) (see current Article 6-2 (1) 3 and (2) of the former Act on the Protection, etc. of Temporary Agency Workers (Amended by Act No. 8076, Dec. 21, 2006); Article 6-2 (1) of the Act on the Protection, etc. of Temporary Agency Workers; Article 248 of the Civil Procedure Act / [Institution of Lawsuit]; Article 390 of the Civil Act / [2] Article 6 (3) (see current Article 6-2 (1) 3 and (2) of the former Act on the Protection, etc. of Temporary Agency Workers (Amended by Act No. 8076, Dec. 21, 2006); Article 6-2 (1) of the Act on the Protection, etc. of Temporary Agency Workers

[2] Supreme Court en banc Decision 2007Du22320 Decided September 18, 2008 (Gong2008Ha, 1463)

See Attached List of Plaintiffs (Attorney Jeon Young-young et al., Counsel for the plaintiff-appellant)

Korea hydroelectric Power Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Lee Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na10302 decided January 25, 2013

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

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

1. A. Under Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Temporary Agency Act”), the term “temporary placement of workers” 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 pursuant to the terms of the temporary agency contract while maintaining the employment relationship.

The issue of whether the legal relationship between the Plaintiff employer and a certain employee is a temporary placement of workers subject to the Dispatch Act is not attributable to the name or form of the contract attached by the party, but rather to the name or form of the contract attached by the third party, whether the third party directly or indirectly orders the relevant worker to make binding instructions on the performance of his/her duties, etc.; whether the relevant worker can be deemed to have been actually incorporated into the third party’s business, such as the selection of workers to be placed in the work, or the number of workers, education and training, working hours, leave, inspection of work attitude, etc.; whether the contract purpose is to independently exercise the power to determine the number of workers to be placed in the work, or the number of workers, education and training, working hours, leave, etc.; whether the relevant worker is distinct from the work performed by the third party; whether the purpose of the contract is expertise and technical nature; whether the Plaintiff employee has independent business organizations or facilities necessary to achieve the purpose of the contract (see, e.g., Supreme Court Decision 2017Da3779, Feb. 26, 2017, 2017).

B. Article 6(3) of the former Dispatch Act (amended by Act No. 8076, Dec. 21, 2006; hereinafter the same) provides that “If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiration of the two-year period if the user company continues to use the temporary agency worker for more than two years (hereinafter “direct employment deeming provision”), the user company and the temporary agency worker immediately considered the direct employment relationship between the user company and the temporary agency worker.

However, Article 6-2(1) provides that “If a user company continues to use a temporary agency worker for more than two years, the user company shall directly employ the relevant temporary agency worker” (hereinafter “direct employment obligation provision”). Therefore, as a user company violating the restriction on the period of secondment under the amended Dispatch Act is obligated to directly employ the temporary agency worker under the direct employment obligation provision, the temporary agency worker has a right to seek a judgment in lieu of the user company’s expression of intent against the user company if the user company fails to perform the direct employment obligation, and the judgment becomes final and conclusive, a direct employment relationship exists between the user company and the temporary agency worker. In addition, the temporary agency worker may claim damages equivalent to the wages until the user company’s direct employment relationship is established.

C. The provision on deeming direct employment or the provision on deeming direct employment is separate from the administrative supervision or punishment for a user company to continue to use a temporary agency worker in violation of the restriction on the period of secondment from the judicial relationship between the user company and the temporary agency worker, thereby deeming the establishment of a direct employment relationship or imposing the user company the duty of direct employment as well as establishing the legal relationship and the legal effect arising between the user company and the temporary agency worker for the purpose of preventing commercialization and long-termization of temporary agency workers (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008). The content is not directly related to the temporary work agency, and the temporary work agency does not require the identity of the temporary work agency during the period of secondment. Thus, if the user company allows the relevant temporary agency worker to continue to perform the relevant duties in violation of the restriction on the period of secondment, it is reasonable to deem that the provision on deeming direct employment or the provision on direct employment cannot be excluded from the application of the provision on the direct employment.

2. The court below acknowledged the facts based on the comprehensive examination of the evidence and found the facts. ① Development assistance work related to the development of technology specified in the service specifications, gathering chemical samples, and transformation assistants requires considerable number of skills and know-how, and the plaintiffs cannot perform the work independently unless there is an education or instruction from the regular employees. ② The defendant provided education for the plaintiffs through regular employees. ② the assistant work for the development of the daily system, the assistant work for the development of the workplace, and the chemical sample collection center, the relevant plaintiffs were assigned within the same office as the regular employees, and were present at the same meeting, and were engaged in the work according to various directions, such as receiving necessary work instructions. ③ In the case of the power generation assistant, the transformation assistant, and the replacement assistant, the plaintiffs did not perform the work independently with the defendant's order and supervision, ③ The defendant's work experience or change of the employees' work site, ④ The defendant's work experience or change of the employees' work site, and ④ the defendant's work experience or change of the employees' work site.

Furthermore, the lower court determined to the effect that, as long as the same user company has used temporary agency workers for a period prescribed in the Dispatch Act, the direct employment is deemed to have been deemed or the obligation of direct employment is to be recognized even if the temporary work agency is replaced, Plaintiff 1 was deemed to have been employed from the date following the expiry of two years after the enforcement of the former Dispatch Act, and Plaintiff 2, 3, 4, 5, 7, and 8 was deemed to have been employed respectively from the day after the expiration of two years from the date of the first dispatch to the instant power plant. In the case of Plaintiff 6, the lower court determined to the effect that the Defendant was liable for employment on the day after the lapse of two years from

In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the determination of the contents of work on temporary placement of workers, distinction between the requirements for temporary placement of workers and contract, or the restriction

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 Ki-taik (Presiding Justice)