Plaintiff 1 and eight others (Attorney Park Byung-hee, Counsel for the plaintiff-appellant)

Busan Metropolitan City Forestry Cooperatives (Attorney Park Jong-sung, Counsel for the defendant-appellant)

April 7, 2017

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff 1 24,017,50 won, 17,37,500 won, 15,620,000 won to the plaintiff 3, 17,695,000 won, 6,992,500 won to the plaintiff 5, 13,072,500 won to the plaintiff 6,992,500 won, 12,30,000 won to the plaintiff 7, and 15,127,500 won to the plaintiff 8, and 10,05,000 won to the plaintiff 9, and 15% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Defendant, as a regional forestry cooperative established in Busan Metropolitan City pursuant to the Forestry Cooperatives Act, has the department of technical guidance, management guidance, and finance in charge of the division of duties as specified in the attached Form in accordance with the organization regulations to work for full-time employees. On the other hand, the Defendant entered into a contract with the State or a local government by ordering the afforestation or construction project and accordingly recruits and hires the daily workers to work at the field of the forest management or construction, thereby performing management guidance and employees’ daily workers and the management and supervision of the construction work.

B. The Plaintiffs entered into a temporary employment contract with the Defendant and retired from the Defendant’s construction site for one year to eight years, providing the Defendant with daily work, such as the reinforcement of forest roads, the maintenance of mountain trails, the prevention of disasters, and the erosion control work.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 11 and 13 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

1) The defendant manages the forest field and the construction site separately. The plaintiffs provide labor at the construction site. Since they constitute construction workers, the plaintiffs constitute construction business workers, the defendant must pay weekly leave allowances, overtime work allowances, and holiday work allowances to the plaintiffs under Articles 55 and 56 of the Labor Standards Act.

2) Since the Plaintiffs concluded a labor contract without a fixed period of time pursuant to Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), when they worked for more than two years, they constitute a full-time employee, the Defendant should pay the said allowance in the same manner as full-time employee.

B. Defendant

1) Even if the Defendant operates a construction site, the principal business falls under the “other agricultural and forest businesses” as provided by Article 63 subparag. 1 subparag. 2 of the Labor Standards Act, and thus, the Defendant is not subject to Articles 55 and 56 of the Labor Standards Act.

2) Since the Defendant employed the Plaintiffs on a certain site for each ordered work against land erosion or collapse, the Defendant may employ a fixed-term worker for more than two years pursuant to the proviso of Article 4(1)1 of the Fixed-term Work Act. Furthermore, even if the Plaintiffs asserted, the Plaintiffs are those who concluded a labor contract without a fixed period of time, and the employment procedure and the form of work are clearly different from full-time employees. Thus, even if there is a difference in working conditions, it cannot be viewed as discriminatory treatment.

3. Determination

A. Whether Article 63 subparag. 1 of the Labor Standards Act applies

The above provision sets the applicable scope of the Labor Standards Act on the basis of the type of business. When the pertinent business falls under the business stipulated in the above provision, the entire workers engaged in the pertinent business are not subject to the provisions concerning working hours, recess and holidays. Since the “agricultural and forestry” under the above provision refers to agriculture and forestry, the issues in the instant case ultimately refer to whether the Defendant’s exercise constitutes “other forestry”.

However, the plaintiffs provided labor at the construction site of the defendant, and the contents thereof include restoration of forest damaged areas, restoration of valleys, maintenance of mountain roads, and landslide prevention projects, but there is no dispute between the parties. However, considering the following circumstances, it is reasonable to deem that the business performed by the defendant constitutes forestry as a whole, and therefore, the plaintiffs are not subject to Articles 55 and 56 of the Labor Standards Act.

1) Regarding the scope of “forest”, the Korea Standard Industrial Classification refers to “forest management business”, “forest production business”, “forest product collection business”, and “forest-related service business” as the type of “forest”. According to the industrial accident insurance premium rates by type of business in 2014 publicly notified by the Minister of Employment and Labor pursuant to Article 14(3) of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance, and Article 12(3) of the Enforcement Rule of the same Act, “forest business” includes “business related to forest management performed by commission or contract,” and the “forest business”, which is the business title of the business, includes “business engaged in forest management” as well as prevention of acid, prevention of blight and harmful insects, protection of forests, tree survey and evaluation services, and other forest-related service business.”

2) However, construction works provided by the Plaintiffs may not be significantly different from the form of work at the general construction site when seen externally. However, given that the aforementioned restoration works for forest damaged areas are aimed at maintaining, developing, or restoring the functions of forests through restoration, preservation, maintenance, prevention of disasters, etc. of forests, the substantial nature of the relevant project is close to the field forest management business or forest management-related service business, and this differs from the construction projects for general profit-making purposes.

3) In addition, when determining which category of business is operated by employers, the number of workers in each category of business can be considered as the top priority in the determination of which category of business is the case of full-time employees. In the case of full-time employees, forestry technical guidance, consultation, various research, technical guidance, forestry technical guidance, and forest field agency business conducted by both the technical guidance and management guidance, excluding the financing division, shall be considered as the field-related service business conducted by both the fee and contract. There is no dispute between the parties that their share belongs to a majority

In addition, even if a worker is included as a part-time employee such as the plaintiffs, the fact that the full-time employee except the finance department is 21%, 37%, and 36% of the total workers at the construction site accounts for 36% of the total number of workers at the construction site does not conflict between the parties, or can be acknowledged by the purport of the whole statement and pleading as to the evidence Nos. 4, 5, 7, and 9. Accordingly, since the portion of the employees at the forest management business and the forest-related service business is 58% of all, it is reasonable to view the defendant's main business as a whole as a forestry.

4) Meanwhile, the plaintiffs asserts to the effect that the defendant's insurance premiums for construction business are paid while purchasing industrial accident compensation insurance, and the defendant's state business sales account for most of the total sales, so the defendant's main business cannot be viewed as forestry.

According to the overall purport of evidence Nos. 12 and arguments, the defendant's head office can be recognized as "forest business," construction sites as "other construction business," and forest sites as "forest business," and the fact that each type of business is determined and subscribed to, as such type of business as above. Thus, it is difficult to view the defendant's overall construction business as a construction business solely on the fact that the construction site is subscribed to industrial accident compensation insurance. The fact that the construction site is not a construction business. The plaintiffs' significant portion of the state business sales claimed by the plaintiffs is due to the defendant's execution of business by concluding a contract with the State or a local government by ordering the afforestation or construction business and by recruiting and employing the workers who work in the forest or construction site, as seen earlier, it cannot be viewed that the defendant mainly runs the construction business.

B. Whether the Labor Standards Act is a discriminatory treatment prohibited under the Act

Article 6 of the Labor Standards Act provides that an employer shall not give discriminatory treatment to working conditions on the grounds of gender, nationality, religion, or social status. The term “discriminatory treatment” under the Labor Standards Act refers to that which is essentially the same differently from that in essence, and that is the same differently from that in essence, cannot be said to exist. Therefore, in order to constitute a discriminatory treatment prohibited under the Labor Standards Act, a person asserting discrimination on the premise thereof and a person who is compared with him/her should, in essence, belong to the same comparative group (see Supreme Court Decision 2013Da1051, Oct. 29, 2015).

However, according to the overall purport of evidence Nos. 13 and 14, the defendant's full-time employees are subject to the service regulations set by the National Forestry Cooperatives Federation, which are employed through public notice of employment, documents, written notes, and interviews. On the other hand, the part of the worker in daily work is recognized as being subject to the employment regulations set out separately from the head office of the worker, by directly employing the on-site agent as required by each on-site agent without any special qualification. However, even if the worker entered into an employment contract without a fixed period of time is converted into an employee, it is difficult to view that the defendant treated the same working conditions differently if the form of work is different. Thus, it is difficult to accept this part of the plaintiffs' assertion.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Designation of Quantities of Judges

(1) Article 4 (Employment of Fixed-Term Workers) (1) Any employer may employ a fixed-term worker within a period not exceeding two years (in cases of the repeated renewal of a fixed-term employment contract, the total period of his/her continuous employment shall not exceed two years): Provided, That in cases falling under any of the following subparagraphs, any fixed-term worker may be employed for more than two years:

2) The provisions pertaining to work hours, recesss, and holidays as referred to in this Chapter and Chapter 5 shall not apply to workers who fall under any of the following subparagraphs.