(영문) 서울행정법원 2009.6.24.선고 2008구합25500 판결

The decision made by the National Labor Relations Commission on May 19, 2008 between the plaintiff and the defendant joining the defendant (hereinafter referred to as "the intervenor") on May 19, 2008 on the application case for the reexamination of unfair dismissal ○○○, 2008 was revoked.

Reasons

1. Details of the decision made by the retrial;

A. Status of the Parties

1) The Plaintiff is an employer who engages in the broadcasting business by employing 5,00 regular workers at the above address.

2) From August 1, 2003, the Intervenor Kim ○ has served in the Plaintiff’s news report headquarters “○○○○” program, and transferred from April 26, 2005 to “○○○○○○ within the same headquarters.” From April 26, 2005 to “○○○○○” program, the Intervenor Lee ○, a witness, was working for each film coverage personnel (VJ, Vides JBD) from the above “○○○” program from April 26, 2005.

B. The process of termination of the instant contract

1) As the Act on the Protection, etc. of Fixed-Term and Part-Time Workers enters into force on May 2007, the Plaintiff prepared the following “Plan for the Improvement of VJ Operation”, and requested 12 video reporters including the intervenors around July 2007 to conduct video coverage work after completing their business registration.

A person shall be appointed.

1. Basic direction;

·Improvement of the operation of VJ human resources following the implementation of the Non-regular Workers Protection Act

- Exclusion of the full-time workers from the operation of free employment income sources (franchis);

- Specifying working standards for the operation of franchises

- Integration of standards by unit of VJ user fees

- - Integrated management and operation of 6m camera headquarters

2. Issues;

-The majority recognizes the VJ human resources in the headquarters as a franchise, but the present situation is likely to be regarded as a worker.

so high that they are operated

- Where an incomplete type of franchise is operated, a mandatory employment unit for at least two years due to the enforcement of the Non-regular Workers Protection Act

Non-string of books

4. Direction of improvement of operation;

A. Operation of VJ franchises

·Promotion of the registration of individual operators

- Business registration is a primary element in which VJ may be recognized as a franchise;

·Replacement with an examination report of work log

1. Although a considerable number of VJ participate in the production of a program and enters the work status in a fixed position and pays user fees with the approval of the CP, it shall be paid;

1. Closure because the number of weekly working days, overtime work hours, etc. can be submitted as evidential data at the time of controversy over the regular workforce due to the statement of the number of weekly working days, overtime work hours, etc.;

(b) Purchase and confirmation of principal equipment;

-Promotion of the purchase of 6m camera consumer equipment

-VJ user fees will pay 100% of user fees for the use of one’s own equipment, and 50% of user fees for the use of construction-registration equipment. - Whether to use one’s own equipment is a critical factor in the determination of worker status.

D. Unification of the headquarters VJ user fees

2) The Plaintiff’s 10 video reporters, including the intervenors, refused to comply with the Plaintiff’s business registration request, and terminated the contract with the Intervenor on August 2, 2007.

1) On October 30, 2007, the intervenors filed an application for the previous order with the Seoul Regional Labor Relations Commission on the termination of the instant contract. On December 17, 2007, the Seoul Regional Labor Relations Commission dismissed the Intervenor’s application for remedy on the ground that the Intervenor was not in a subordinate relationship with the Plaintiff, and thus, is not an employee under the Labor Standards Act.

2) Accordingly, on January 29, 2008, the intervenors filed an application for reexamination with the National Labor Relations Commission by 2008 Maritime Affairs Commission. On May 19, 2008, the National Labor Relations Commission recognized the termination of the instant contract as unfair, provided that the intervenors constitute workers under the Labor Standards Act that provide labor between the Plaintiff and the Plaintiff, on the grounds that the intervenors constituted subordinate employees under the Labor Standards Act that provide labor between the Plaintiff and the Plaintiff, and made a decision of reexamination ordering the Plaintiff to return the original position to the Plaintiff and to pay the amount equivalent to wages.

【Ground of recognition】 Evidence No. 1, 2, evidence No. 1, evidence No. 1, and the purport of the whole pleadings.

2. Whether the decision on retrial is lawful.

A. The plaintiff's assertion

In full view of the content and role of the Intervenor, designation of working hours and places, ownership of equipment and tools for work, substitution of work, remuneration relationship, etc., the Intervenor cannot be deemed as an employee prescribed by the Labor Standards Act that provided the Plaintiff with labor in a subordinate relationship for the purpose of wages in substance.

B. Facts of recognition

1) Recruitment and employment of video reporters;

① When recruiting and employing video reporters, the Plaintiff recruited a video reporters who will work at ○○○ by posting a “public notice of employment” on the Plaintiff’s website or broadcast personnel employment worker’s “○○○○○○○,” and the contents of the business were as follows: “○○○○○ item shooting, compilation and production, etc. (it is possible to gather independently),” “○○○○” in the working place among the working conditions, and “2 million or KRW 2.5 million per month” in the wage terms.

② After employing video reporters, the Plaintiff did not prepare a franchise agreement or an employment contract, and prepared and managed “broadcast production personnel record card” and “the personal information, academic background, career, employment channel, etc.” and “the personal card of foreign non-production personnel.”

2) Activities and roles of the intervenors in the program

The intervenors were employed in the “○○○ program” program, and the program was <1> 1 / line planning and line (the nature of the program and basic direction in the reporter and scke) 1 / 2 / preparation of a film composition plan (the subject matter of interview, content of inquiry, screen screen map and screen environment, etc.) / 3 / photographs of video reporters according to the film composition ? ? 4 / broadcast report preparation of the broadcast report (the draft editing, composition author, and reporter) ? 5 Compilations prepared by reporters and organized writers, and the news gathering personnel were added through five stages, such as editings.

3) Specific process of the intervenor’s specific service

(1) Since it is necessary for intervenors to comply with their intent to plan a program through the organic process in the entire process of shooting and editing, it was conducted through several revisions and supplementations through reporters in charge of news gathering or members of the news gathering organization in accordance with the final intent of planning the program.

② Specifically, the intervenors received detailed instructions for the content, method, method, etc. of the interview in consultation with the reporters in charge of coverage and the composition of the reporters, and, after shooting, after editing the contents of the interview through the broadcasting manuscript, the intervenors received instructions for continuous correction through verbal or e-mail from the persons in charge of coverage at the stage of such work or from the persons in charge of coverage.

4) Place and time of service

① Although the intervenors did not designate specific place of work and time from the Plaintiff, the program conference planned and selected an item is at least 10:00 am on a regular basis in the course of producing the program. In order to use the above work tools, such as a camera, which is located in the personal property allocated by the Plaintiff, the intervenors ordinarily worked at 10:0 am and moved to a photographing place.

② The Intervenor worked to take pictures necessary for the instant program for at least eight hours a day during the week except for the part of the work log (No. 7-1, No. 7-2) written by the Intervenor to the Plaintiff, and the part of the weekends (a part of the weekends is written to be taken). Considering the nature of the work, there was a case where the Intervenor goes to work on Saturdays or Sundays, or goes to work at night or on a new wall at night or on a new wall under the direction of the program manager.

5) Remuneration relationship

The intervenors reported to the program manager on the monthly work details, time of departure and retirement, business trip details, etc. in the “business log for the Claimant provided by the Plaintiff,” and the Intervenor has received an additional amount from the Plaintiff as a business trip on the day or on the two-day business trip of the said day, to the amount calculated by multiplying the number of working days per month by the daily day.

6) Other working conditions

① The intervenors took filmed of images using one’s own 6m camera, and the intervenors received subsidies from the original scrap, such as editing devices, consortiums, tapes, wire microphones, and distribution equipment, other than the foregoing camera D, and received aviation charges, railroad service charges, etc. from the Plaintiff as actual cost.

② In addition, the intervenors were allocated personal things from the Plaintiff, and used them freely, with the Plaintiff’s access to the foregoing work tools, such as carmeras. The intervenors issued a certificate of access from the Plaintiff and used welfare facilities, such as the rest space provided by the reporters, organized writers, etc., and the Plaintiff’s healthcare center, mutual aid association, etc. free of charge.

③ In the event that the Plaintiff’s error in performing the foregoing duties was found in the course of performing the said duties to the intervenors, the Plaintiff has collected the horses, etc. stating the developments leading up to the error.

【Ground of recognition】 The non-contentious facts, Gap 4, 5, 6, 7, 9, 11, 15, Eul 2, 3, 4, 6, 7, 14, 15, 16, 21, 22, 23, 25, 26, 31 (including abnormal numbers), witness ○○, and the purport of the whole pleadings.

C. Determination

1) Whether the intervenor's status as an employee is recognized

A) Applicable legal principles

The issue of whether a contract constitutes a worker under the Labor Standards Act ought to be determined depending on whether a worker provided an employer with work for the purpose of earning wages in a business or workplace, rather than whether the contract form is an employment contract. Whether a subordinate relationship here exists is determined by the employer and the employer determines the content of work, and is subject to rules of employment or service (personnel), and is subject to reasonable direction and supervision by the employer in the course of performing work, whether the employer designates working hours and working places, is bound by the employer, whether the employer is able to operate his/her business on his/her own account, whether the employer is able to own non-processed goods, raw materials, working tools, etc., or have a third party employ and act on behalf of him/her, and whether the risks, such as the creation of profits and losses through the provision of labor, are the nature of remuneration, whether the nature of remuneration was determined by the basic wage or fixed wage, whether the employer has been subject to withholding taxes, and whether the employer has a superior economic position such as social security system or status as an employee is determined.

B) Determination

In full view of the following circumstances revealed in the facts of recognition and the above facts, the Intervenor appears to be a worker who provided labor in a subordinate relationship with the Plaintiff for the purpose of wages in a labor relationship with the Plaintiff even though the Intervenor directly owned 6mm Kameras and was not subject to management by the Plaintiff, such as explicit departure and retirement time, and four major insurance are not covered by the Intervenor.

① The Intervenor was employed as a film coverage personnel by the Plaintiff’s public notice of employment, and the Intervenor taken certain images within a specific place planned and intended by the Plaintiff, and corrected and edited them.

② Although the intervenors had had certain discretion to do work with respect to the production of videos, the intervenors have been continuously given the instructions for the revision of the contents and methods of interview, methods of photographing, and other contents of images, etc. according to the photograph produced according to the intent of the reporters in charge of news gathering who belong to the Plaintiff, as well as the composition of the editing, according to the film produced according to the intent of the reporters in charge of news gathering and the composition of the editing, and have been given the instructions for continuous correction on the spot, by oral or e-mail, in addition to the above shooting and the compilation of editing.

③ In order to perform the above duties, participants are not paid an amount calculated in the amount of a specified amount per film of an item of a program in return for the foregoing performance of duties, but have been paid a certain amount per day multiplied by the number of actual working days by the basic unit of month.

④ Even if the Plaintiff did not prohibit the Intervenor from serving as another company’s video coverage personnel, in light of the actual working days and working hours indicated in the Intervenor’s work log, etc. on the Plaintiff, the Intervenor appears to be practically impossible to serve as the Plaintiff’s video coverage personnel while serving as the Plaintiff’s video coverage personnel.

⑤ In the event that the Plaintiff had a video coverage personnel perform the foregoing duties, and there was a mistake in performing his/her duties, the Plaintiff has been urged to write down the horses, etc. containing the background of the mistake.

④ On August 2, 2007, before the entry into force of the Non-regular Workers Protection Act (hereinafter “Non-regular Workers Protection Act”), the Plaintiff, in full view of the following: (a) on August 2, 2007, the Plaintiff demanded business registration to exclude the aforementioned non-regular workers from the application of the Non-regular Workers Protection Act; and (b) on the part of the Plaintiff, was sufficiently anticipated that the form of work of video coverage personnel, such as the intervenors, can be recognized as an employee under the Labor Standards Act.

7) Even if the Intervenor did not receive a fixed basic wage or fixed wage, but did not withhold the acquisition tax from the Plaintiff, and there are circumstances in which the Plaintiff did not apply the rules of employment, etc. to the Intervenor, such circumstances can be seen as a phenomenon that is ordinarily increased rapidly and may be seen as a phenomenon that is ordinarily occurring to non-regular workers, and is merely a situation that can be determined arbitrarily in a superior economic position, which is an employer, in fact.

2) Sub-decisions

Therefore, the intervenors are workers under the Labor Standards Act, and it is unfair that the plaintiff's request for business registration against the Intervenor who is an employee is unfair. Thus, the decision of this case is legitimate as the termination of the contract of this case is justified, and the plaintiff's assertion on the contrary is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed, and it is so decided as per Disposition.

Judges

Judges of the presiding judge 000

Judges OOO

Judges 000

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