Whether Article 8(2) [Attachment 16] of the Public Officials Remuneration Regulations only refers to “the so-called “the part-time worker” in Article 8(2) [Attachment 16] subparagraph 2(b)(7) of the “Report on the Conversion Rate of Public Officials, etc. in General Service” means eight hours a day and forty hours a week (negative)

Examining the legal principles on the method of interpreting the Act in light of Article 47(1) of the State Public Officials Act, Articles 8(2) [Attachment 15], 8(2) [Attachment 16] subparag. 2(b)(7) of the Public Officials Remuneration Regulations, Article 4-4(1) and (2) of the Employment Security Act, Article 1-2(1) and (2) of the Enforcement Rule of the Employment Security Act, Article 2 of the former Employment Advisor Regulations (wholly amended by Ordinance of the Ministry of Employment and Labor No. 267 of Jan. 30, 2019), Articles 2 and 3 of the former Employment Teacher Regulations (repealed by Ordinance of the Ministry of Employment and Labor No. 251 of Oct. 11, 2018), Articles 2 subparag. 9, and 18 of the Labor Standards Act, etc., the term “regular work hours” means “regular work hours” as stipulated in Article 8(2) [Attachment 16] of the Public Officials Remuneration Regulations, and Article 8(2(17) of the Rules.

Article 47(1) of the State Public Officials Act, Article 8(2) [Attachment 15] and [Attachment 16] 2(b)7 of the Public Officials Remuneration Regulations, Article 4-4 of the Employment Security Act, Article 1-2 of the Enforcement Rule of the Employment Security Act, Article 2 subparag. 9 of the Labor Standards Act, Article 18 of the Labor Standards Act

Plaintiff 1 and one other (Attorney Cha-il et al., Counsel for the plaintiff-appellant)

The Head of Seoul Regional Employment and Labor Agency

Seoul High Court Decision 2019Nu53411 decided December 20, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

(1) From March 28, 2011 to January 28, 2018, Plaintiff 1 had worked as “short-time work counselor” for 25 hours a week at ○○○ △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ from March 29, 2010 to January 22, 2018, respectively.

(2) On January 29, 2018, Plaintiff 1 was appointed as a part-time public official (vocational counselor) employed by the ○○ Employment and Labor Office, and Plaintiff 2 was appointed as a part-time public official (administrative assistant) employed by the ○○○○ Employment and Labor Office on the same day.

(3) On May 11, 2018, the Defendant held a deliberative committee on the evaluation of salary grade for new public officials on flexible-time basis to define the beginning salary grade for the Plaintiffs as 4 salary grade, and did not reflect the work experience of “short-time work counselor” in the work experience before the appointment of the Plaintiffs in the determination of salary grade.

(4) On June 26, 2018, the Plaintiffs filed an application with the Defendant for re-determination of the Plaintiffs’ beginning salary grade by aggregating the work experience of “short-time work counselor”. Accordingly, the Defendant notified the Plaintiffs of the decision rejecting re-determination of salary class on July 6, 2018 on the ground that the Plaintiffs’ work experience does not fall under “full-time work counselor” (hereinafter “instant disposition”) under Article 8(2) [Attachment 16] of the Rules on the Remuneration of Public Officials, Etc.

(5) The Plaintiffs filed an appeal review on July 18, 2018, but the Ministry of Personnel Management dismissed the Plaintiffs’ claim on September 18, 2018.

B. The key issue of the instant case is whether the Plaintiffs’ work experience as “short-time work counselor” falls under “full-time work” as stipulated in the instant provision.

2. Relevant provisions and legal principles

A. As a matter of principle, since a law is a universal norm with the same binding force against many and unspecified persons, it is necessary to clarify the standard meaning of the law and ensure objective validity when it is interpreted, and to maintain consistency with all the people as much as possible so as to avoid undermining legal stability. Meanwhile, since the law is established in consideration of universal and typical matters, it is also required to interpret that the law can be the most reasonable solution to the specific case in application of the law in various cases that occur in the reality of society. In short, the goal of legal interpretation must be to find concrete validity within the extent that does not undermine legal stability. To achieve that end, as a matter of principle, the interpretation must be faithfully interpreted within the ordinary meaning of the text used in the law, and it is necessary to additionally interpret the law in a systematic and logical manner that takes into account the legislative intent and purpose, legislative history, harmony with the entire legal order, and relationship with other Acts and subordinate statutes (see Supreme Court en banc Decision 831Da3131, Jan. 17, 2013).

B. (1) Article 47(1) of the State Public Officials Act provides that matters concerning the salary grade and promotion of public officials shall be prescribed by Presidential Decree. The Public Officials Remuneration Regulations (amended by Presidential Decree No. 23497, Jan. 6, 2012) pursuant to delegation shall define the beginning salary grade of public officials in accordance with attached Table 15, and [Attachment Table 15] provides that the beginning salary grade of public officials shall be calculated by calculating the career period to each rank pursuant to subparagraph 1 of [Attachment Table 16] of [Attachment Table 16] of [Attachment Table 16] of the instant provision [Attachment 2. B. 7] of the “career conversion rate of public officials, etc. of public officials, etc.,” the same field of work experience is recognized as 100%, and the same field of work experience of public officials in non-permanent sector is recognized as 80%, and the same field of work experience is not specifically prescribed as to “the beginning salary grade of public officials.”

(2) Article 4-4(1) and (2) of the Employment Security Act may place an employment counselor who is not a public official in charge of job placement, vocational guidance, and provision of employment information (hereinafter referred to as “private employment counselor”) at an employment security office. The standards for placement of private employment counselors and other necessary matters are prescribed by Ordinance of the Ministry of Employment and Labor. Following such delegation, Article 1-2(1) and (2) of the Enforcement Rule of the Employment Security Act provides that the Minister of Employment and Labor shall consider the population, number of workers and the number of business places in the area where the employment security office is located, and the qualification, procedure for selection, and employment of private employment counselors, and other matters necessary for personnel management.

According to delegation, the Minister of Employment and Labor adopted a system of “short-time work counselor” pursuant to the former Rules of Employment Counselors (wholly amended by Ministry of Labor No. 729, Jan. 20, 2010; hereinafter the same) for the duties, qualifications, selection procedures, employment, and other matters necessary for personnel management of private vocational counselors assigned to local labor agencies under the former Rules of Employment Counselors (wholly amended by Ordinance of the Ministry of Labor; hereinafter the same shall apply). However, with respect to career-interrupted women who lead to the creation of part-time work positions in the public sector and who have a burden on childbirth and childcare, the former Rules of Employment Counselors (amended by Ordinance of the Ministry of Labor No. 733, Mar. 1, 2010; hereinafter the same shall apply) for the provision of high-quality work experience women who are not public officials, the term “part-time work counselor” refers to part-time workers under Article 2 of the Labor Standards Act, and the term “part-time work counselor” refers to those prescribed by the former Rules of Employment Counselors.

On the other hand, after the instant disposition, the term "short-time work counselor" and "ordinary work counselor" mean a person whose contractual work hours are 8 hours a day and 40 hours a week from among the job counselors, and the term "short-time work counselor" defined as a person whose contractual work hours are 5 hours a day and 25 hours a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week a week, and as a result, the former Rules of Employment Counselor was repealed by the Ministry of Employment and Labor No. 251, Oct. 1, 2018, to comprehensively regulate the two.

(3) Article 2 Subparag. 9 and Article 18 of the Labor Standards Act define that the contractual work hours per week are shorter than those of ordinary workers engaged in the same kind of work at the workplace. The working conditions of part-time workers shall be determined according to the ratio calculated on the basis of the working hours of ordinary workers engaged in the same kind of work at the workplace, and matters which form the basis for such determination and other necessary matters shall be prescribed by the Presidential Decree, and Articles 55 (Guarantee of Pay Holiday Holidays) and 60 (Guarantee of Annual Leave Leave) shall not apply to workers whose contractual work hours per week are less than 15 hours on the average of four weeks (if they work for less than four weeks).

C. Examining the contents, structure, etc. of the relevant provisions in light of the aforementioned legal principles, the term “standing” in the instant provision refers to a case where a worker worked on each working day and has worked regularly as prescribed by the rules of employment, etc. of the relevant place of business, and it shall not be deemed that the term “the so-called “the so-called “prol-ti” that works for eight hours a day and forty hours a week is not the case. The detailed reasons are as follows.

(1) Since the Public Officials Remuneration Regulations do not specifically stipulate the meaning of “standing”, the meaning of “standing” in the instant provision ought to be faithfully interpreted in light of the ordinary meaning of the terms. In principle, reasonable interpretation should be derived by taking into account the legislative history and legislative intent of the instant provision, relationship with other statutes, etc.

(2) The term “standing worker” refers to a worker or a part-time worker who works for a given period of time on a daily basis. In other words, the concept of “airworthiness” and “regulation” is not directly related to “minimum working hours” that should work for at least a certain number of hours on a daily basis. Article 9 subparag. 1 of the Enforcement Decree of the National Health Insurance Act, upon delegation by Article 6(2)4 of the National Health Insurance Act, provides that “non-standing worker or part-time worker whose prescribed working hours are less than 60 hours” is excluded from the National Health Insurance Act. Here, the term is premised on the premise that the term “standing worker” and “fixed working hours” are different.

(3) The former Employment Security Act is a subordinate provision of the Employment Security Act to determine matters necessary for the personnel management of a private vocational counselor. It is not a provision that is established in mind to recognize work experience at the time of defining the beginning salary class when a private vocational counselor is employed as a public official. The former Regulations on Minimum-Time Work Counselors, based on the distinction between a part-time employee and a private vocational counselor under the Labor Standards Act as “part-time work counselor,” but there is no difference in both qualifications, status, and duties, except that the daily work hours vary. The Labor Standards Act only allows workers to be excluded from working conditions of “part-time worker” within a certain scope, and does not stipulate that “part-time worker” does not constitute “part-time worker.” Therefore, the two separate provisions of the former Regulations on Work Counselors refer to the Regulations on Work Hours, such as holidays and leave of absence of a “part-time Work Advisor,” and do not appear to have the same effect as the current Regulations on Work Hours 5’s Employment Counselors’s Work Hours.

(4) As the Public Officials Remuneration Regulations was amended by Presidential Decree No. 23497, Jan. 6, 2012, the phrase “one-time work” was added, including the instant provision, to “improvement of similar career standards.” The reason for amendment made by the government at the time was limited to only some of the similar work experience prior to the appointment of public officials, but it was to recognize maximum of 10% of the work experience in the same field in order to actively attract private workers to the public service, and to reflect it in defining salary class and re-determination in addition to the full-time work experience in order to rectify discrimination against non-regular workers. As such, the reason for amendment to the instant provision was to actively recognize the work experience of non-regular workers in defining the work experience of public officials prior to the appointment of public officials in order to limit the work experience of non-regular workers, and thus, it was not intended to limit the work experience of non-regular workers in the same field to the extent that it is not intended to limit the scope of the amendment to the Public Officials Remuneration Regulations.

(5) Meanwhile, according to the reasoning of the lower judgment, in order to explain the amendment of the Public Officials Remuneration Regulations of the Ministry of Public Administration and Security as to the scope and rate of recognition of similar work experience through the amendment of the Public Officials Remuneration Regulations of 2012, the term “standing” is indicated as “the case where the relevant agency is subject to the same work hours as the regular employee of the relevant agency and the Full-ti” as “the main amendment of the Public Officials Salary Management Standards Act,” which is the data prepared and distributed from the Ministry of Public Administration and Security performance-based performance benefit planning division of the relevant agency on May 2012, and accordingly, the term “standing” is applied to the same work hours as the regular employee of the relevant agency on October 2012, and the concept of “non-standing work hours” as “non-permanent work hours” under the Labor Standards Act and “non-permanent work hours as a grass-ttilt” (Article 9(2) of the Public Officials Remuneration Regulations). However, the concept of “non-permanent work hours” can be accepted without any relevant opinion.

3. Determination as to the instant case

A. As seen earlier, the former Regulations for Minimum-Time Work Counselors are governed by the delegation of Article 4-4(2) of the Employment Security Act as well as the former Regulations for Vocational Counselors. As such, “short-time Work Counselors” under the former Regulations for Minimum-Time Work Counselors is one of the “Private Employment Counselors” under Article 4-4(1) of the Employment Security Act.

Article 28 of the former Regulations for Counseling of Work-Based Workers, which applies to the Plaintiffs during the period of their work as “worker for Work-Based Workers”, provides that the working day shall be from every week to every week, and the Saturday shall be from every week to Friday, and the working hours shall be from 10:00 to 16:00 (Paragraph 1), and the working hours shall be from 10:00 to 16:00 (Paragraph 2), and the working hours shall be in accordance with the Labor Standards Act, and the working hours shall be separately designated within the scope of the working hours

In light of the above facts in light of the contents of the aforementioned provisions, the Plaintiffs shall be deemed to have worked for five days per week, each week, each of which is the ordinary working day of the government offices, and five hours per day (excluding recess hours) per day, and thus, they shall be deemed to have worked as a "standing". Accordingly, according to the instant provisions, the Plaintiffs’ work experience as a "short-time work counselor" should be reflected in defining the beginning salary grade of the public officials.

B. Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that the Plaintiffs’ work experience as a part-time vocational counselor does not constitute a “part-time work experience” and did not constitute a “part-time work experience” and did not constitute a “part-time work experience” in defining the beginning salary class. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of the “part-time work” under the instant provision, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)