2019Guhap13985 Revocation of a disposition of suspension of business for three months by asbestos dismantlers or removers

A Stock Company

Attorney Jeong-chul et al., Counsel for the defendant

The President of the Gwangju Regional Labor Agency

April 23, 2020

June 11, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's business suspension disposition against the plaintiff on September 9, 2019 is revoked for three months.

1. Details of the disposition;

A. The Plaintiff is a company engaged in the business of dismantling or removing asbestos.

B. On August 16, 2019, the Defendant conducted an inspection with the Plaintiff, and issued prior notice of the disposition to the Plaintiff on August 16, 2019, on the ground that the Plaintiff did not meet the human resources standards under Article 80-6 and [Attachment Table 10-4] of the former Enforcement Rule of the Industrial Safety and Health Act (amended by Ordinance of the Ministry of Employment and Labor No. 272, Dec. 26, 2019; hereinafter “Enforcement Rule”) from January 27, 2019 to July 26, 2019.

C. On September 9, 2019, the Defendant issued a disposition suspending the work of dismantling or removing asbestos for three months from September 11, 2019 to December 10, 2019 on the ground that the Plaintiff failed to meet the instant human resources standards and violated Article 38-4(6) of the former Industrial Safety and Health Act (amended by Act No. 16272, Jan. 15, 2019; hereinafter “Act”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

B, who is qualified under subparagraph 1 (b) of the human resources standard of this case, retired on January 26, 2019. However, B re-entered on March 1, 2019 and worked until April 1, 2019. The Plaintiff employed C, who is qualified under subparagraph 1 (b) of the human resources standard of this case, from March 1, 2019 to August 1, 2019, and D, respectively, from July 27, 2019 to the present. As such, the period during which the Plaintiff failed to meet the human resources standard of this case is a total of 33 days from January 27, 2019 to February 28, 2019. The Defendant ordered the Plaintiff to take corrective measures in proportion to the suspension of business operation, etc., on the grounds that it could not be deemed that the Plaintiff violated the principle of suspension of business operation, in lieu of minor concerns about the suspension of business operation.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Details of the human resources standard of this case

Article 30-8 of the former Enforcement Decree of the Industrial Safety and Health Act provides that a person who intends to be registered as an asbestos dismantler or removal business operator shall have specialized human resources necessary for dismantling or removing asbestos, such as construction engineers in the fields of civil engineering and construction, and facilities and equipment for safe dismantling or removal of asbestos, such as negative pressure instruments and sanitary equipment, shall be determined by Ordinance of the Ministry of Employment and Labor. Accordingly, Article 80-6 and [Attachment Table 10-4] 1 of the Enforcement Rule of the Act provides that a person who manages a site for dismantling or removal of asbestos shall be subject to the standards for human resources for asbestos dismantler or removal shall be one or more construction engineers in the fields of civil engineering and construction, industrial safety industrial engineer, etc., who has completed education prescribed and announced by the Minister of Employment and Labor (hereinafter referred to as the "education for asbestos dismantling or removal") with regard to methods of dismantling or removal, and that a person who has completed an order to suspend or remove asbestos for at least two years pursuant to Article 16-2 of the Enforcement Rule of the Act shall be prohibited by the Minister of Employment and Labor.

B. From March 13, 2007, the Plaintiff employed E with the qualifications under subparagraph 1 (a) of the instant human resources standard as of March 13, 2007, and employed B with the qualifications under subparagraph 1 (b) of the instant human resources standard as of January 26, 2019, from March 1, 2019 to April 1, 2019, and employed D with the qualifications under subparagraph 1 (b) of the instant human resources standard as of July 27, 2019, and there is no dispute between the parties. According to the overall purport of the statement and arguments of evidence Nos. 5 and 9 (including branch numbers), according to the fact that the Plaintiff employed C with the graduate of a middle school from March 1, 2019 to August 1, 2019, C was not equipped with the qualifications under Article 10 (b) as of March 11, 2019 or as of August 28, 2019.

Therefore, the period during which the Plaintiff failed to meet the instant human resources standards is 149 days in total from January 27, 2019 to February 28, 2019, and from April 2, 2019 to July 26, 2019. Whether the Plaintiff has waived or abused the discretionary authority or not.

① In order to prevent industrial accidents and to maintain and promote the safety and preservation of workers by managing buildings containing asbestos containing not less than a certain content and area by a person with certain qualifications, the laws and regulations have at least the standard of human resources to be equipped to prevent industrial accidents and to create a pleasant working environment. The Plaintiff did not employ employees meeting the qualification under subparagraph 1 (b) of the human resources standard of this case for 149 days after retirement and did not perform the work of dismantling and removing asbestos during the above period. The degree of violation of the laws and regulations cannot be said to be minor. ② Asbestos is not only pulmonary disease but also pulmonary disease. ② Asbestos is necessary to protect workers engaged in the work of dismantling and removing asbestos from its hazard. For this purpose, it is necessary to enforce workers to meet the human resources requirements, etc. under the Act. ③ In light of the fact that the provision of Article 15-3 (Penalty Surcharge) of the Act cannot be imposed in lieu of business suspension, the Plaintiff’s assertion is without merit.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and salter;

Judges Kim Gin-Un

Judges' Office;

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.