2016Da239024 Confirmation, etc. of the status of workers

2016Da239031 (Joint) Confirmation, etc. of the status of workers

2016Da239048 (Joint) Confirmation, etc. of the status of workers

2016Da239055 (Joint) Confirmation, etc. of the status of workers

2016Da239062 (Joint) Confirmation, etc. of the status of workers

Attached Form is as shown in the list of plaintiffs.

Law Firm Purpose and one other, Counsel for the defendant

Korea Highway Corporation

Attorney Choi Jong-soo et al., Counsel for the defendant-appellant

Seoul High Court Decision 2014Na2036786, 2014Na2036793 Decided June 24, 2016

(Consolidation), 2014Na2036809, 2014Na2036816, 2014Na20369

39(Consolidated Judgment) Judgment

May 14, 2020

All appeals shall be dismissed.

The costs of appeal shall be borne by the defendant.

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

1. As to the ground of appeal Nos. 1 to 5

A. According to Article 2 subparag. 1 of the Act on the Protection, etc. of Dispatched Workers (hereinafter “Dispatched Act”), a worker means that a temporary work agency hires a worker and has him/her engage in work for the employer under the direction and order of the user company, while maintaining the employment relationship. In cases where the user company allows a certain worker to engage in work for a third party, whether the legal relation falls under the temporary placement of the worker subject to the Dispatch Act as above does not go against the name or form of the contract attached by the party, but rather, if the third party directly or indirectly orders the relevant worker to engage in the work itself, such as giving a binding order with regard to the relevant work, it is substantially incorporated into the relevant third party’s work, such as one working group composed of one of the third party employees, and directly performing the work. Whether it can be seen as working for the Plaintiff employee, whether it is possible to input the work for the Plaintiff employee, whether it is necessary for the employer to select the worker, whether it is an independent worker’s work or not, and whether it is possible to independently determine the scope of work.

B. After finding the facts as a whole based on the evidence adopted by the court below, the plaintiff was employed by each non-resident company (hereinafter "non-resident company of this case" without classifying individual business entities) and the non-resident worker of this case is engaged in work for the defendant under the defendant's direction and order while maintaining employment relationship at the defendant's workplace. Thus, it seems reasonable that the plaintiffs and the defendant were dispatched workers. 1) The defendant artificially sent the expressway patrol duty directly handled by the defendant's systematic and functional control over the long time, and the duty of maintaining, maintaining, managing, and patrol the highway of this case should be accompanied by the emergency and swiftness of the service contract of this case. In light of the above, in order to manage the safety patrol duty performed by the plaintiff's non-resident of this case, the plaintiff's non-resident of this case's non-resident of this case's non-resident of this case's non-resident of this case's order and the non-resident of this case's non-resident of this case's order and the non-resident of this case's order of this case's work.

C) ① The instant service agreement included “the Defendant’s right to instruct the instant outsourcing business owner to perform various duties,” and accordingly, the Defendant specifically supplemented the Plaintiffs’ work methods through occasional and regular education and distribution of various educational data. ② The employees in the situation room employed by the Defendant sent specific work places and work details to confirm the location of the Plaintiffs or safety patrol vehicles through the automatic vehicle location verification system, and intended to control the work places, and actively monitor the Plaintiffs.

(3) In accordance with the instant service agreement, the Plaintiffs reported the result of the management to the situation room workers, when the employees in the situation room of the Defendant directly instructed the Plaintiffs to perform their duties. ④ From January 2013, the Defendant prepared a plan for strengthening on-site management to prevent the safety accidents of the safety patrolman, and conducted a drinking test to the safety patrolman from time to time. ⑤ The Plaintiffs are patrolmen, etc.

In light of these circumstances, it is reasonable to view that the Defendant decided or instructed the Plaintiffs’ work volume, work method, order, work speed, work place, work hours, etc. to be included in the Plaintiff’s order was merely a level of delivering the Defendant’s order to the Plaintiffs. Therefore, it can be deemed that the Defendant’s direction and order to the Plaintiffs was performed under the Defendant’s control. (2) The Plaintiff’s head office and the employees of the Defendant’s head office and the employees of the Defendant’s head office were to take over the previous work, which the employees of the Defendant’s head office and the employees of the Defendant were assigned to the Defendant, while maintaining the systematic reporting or cooperation system with the employees of the Defendant’s situation room. In light of the fact that the Plaintiffs were jointly posted by the employees of the Defendant’s head office and the employees of the Defendant’s head office and the employees of the Defendant’s head office and the employees of the Defendant’s head office were assigned to the Defendant’s head office and the employees of the Defendant’s head office and the employees of the Defendant’s head office were assigned to the Defendant’s order and the employees.

3) Defendant could have considerable influence on the selection of workers and the replacement of workers or workers’ number of hours of work or wage levels, etc. It appears that the non-resident company of this case independently decided matters concerning the work attitude and leave of absence through the non-resident company of this case. Therefore, it is difficult to view that the non-resident company of this case was considerably involved in the education and training of the plaintiffs, and that the non-resident company of this case conducted independent education and training for the non-resident of this case. The service contract of this case was set so that the defendant can exercise considerable discretion and control over the work site of the non-resident of this case, and most of the employees of the non-resident of this case could not be specifically determined according to the Defendant’s instruction. In light of the above legal principles and records, it is difficult to view that the non-resident of this case’s service contract of this case was subject to the non-resident of this case’s service contract of this case and the non-resident of this case’s service site of this case’s service safety control or non-resident of this case’s work site of this case.

2. As to the sixth ground of appeal

Article 6-2(1) of the Dispatch Act (amended by Act No. 11279, Feb. 1, 2012; effective August 2, 2012; Article 6-2(1) of the Dispatch Act provides that "where an employer uses a temporary agency worker in relation to a job that does not fall under a temporary agency worker," and "where an employer is provided with a temporary agency worker's service without the permission of the Minister of Employment and Labor ( subparagraph 5) without the permission of the Minister of Employment and Labor (see, e.g., Supreme Court Decisions 200Da11279, Feb. 1, 2012; 2000Da16799, Feb. 1, 201; 2009Da32799, Apr. 16, 2015).

In the same purport, the lower court did not err by misapprehending the legal doctrine on the legal nature of the direct employment obligation under the Dispatch Act, contrary to what is alleged in the grounds of appeal.

3. As to the ground of appeal No. 7

A. In light of the content, amendment process, legislative purpose, etc. of the provision on the direct employment obligation under the Dispatch Act, even if a temporary agency worker was retired or dismissed from the relationship between the user company and the temporary agency worker, such circumstance does not, in principle, affect the legal relationship related to the direct employment obligation between the user company and the temporary agency worker. Furthermore, even if the temporary agency worker expressed his/her intent to resign with the intent of the user company to terminate the employment relationship with the temporary agency worker, such circumstance alone does not necessarily mean that the temporary agency worker falls under “where the relevant temporary agency worker explicitly expresses his/her objection” (see, e.g., Supreme Court Decision 2017Da219072, Aug. 29, 2019).

B. 1) The argument that Plaintiff 90 and 236 lost the qualification requirements of the Defendant as a safety patrolman after the Defendant’s direct employment obligation occurred is not a legitimate ground for appeal, as it is asserted only in the final appeal. 2) Furthermore, the lower court rejected the Defendant’s assertion that the Plaintiffs, who retired from or were subject to the Defendant’s direct employment obligation after the occurrence of the Defendant’s direct employment obligation, are not subject to the provision on the direct employment obligation.

Examining the reasoning of the judgment of the lower court in light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine on the direct employment obligation under the Dispatch Act, as otherwise alleged in the grounds of appeal.

4. As to the ground of appeal No. 8

A. The lower court determined as follows: (a) whether there exists an employee subject to comparison, and the Plaintiff continued from the commencement of temporary agency work to the date of occurrence of the Defendant’s direct employment obligation and continued to perform the same or similar tasks as that of the Defendant’s on-site safety patrol officer; (b) thus, the comparative worker to determine whether there was a discriminatory treatment against the Plaintiffs during the period before the direct employment obligation arises to the Defendant.

Examining the reasoning of the original judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logic and experience, or by misapprehending the legal doctrine on the scope of workers subject to comparison under the Dispatch Act, as alleged in the ground of appeal. (B) Article 21(1) of the Dispatch Act provides that “If the Plaintiffs are liable for damages against wages discrimination, the temporary work agency and the user company shall not discriminate against the dispatched workers compared to those engaged in the same kind of or similar work within the employer’s business for the reason that they are temporary agency workers,” and Article 21(2) of the Dispatch Act provides that the temporary work agency may file a request for correction of discriminatory treatment against the dispatched workers with the Labor Relations Commission. Considering the language and text of the provision on prohibition of discrimination under the Dispatch Act and the legislative purport thereof, the employer may be deemed to have been aware that the dispatched workers knew of the same or similar work with the comparable workers or have exercised reasonable influence on the employer’s wages from an ordinary worker’s standpoint, and thus, may not be subject to reasonable discrimination.

On the other hand, Article 34(1) of the Dispatch Act provides that a temporary work agency shall be deemed an employer when applying Article 34(1) of the Labor Standards Act, and does not regard a user company as an employer for temporary agency workers in relation to the payment of wages to temporary agency workers. However, such provision is a special provision to clarify a person who is responsible for the employer for temporary agency workers in relation to the legal relationship surrounding temporary agency workers, and thus, the legislative purport of the prohibition and correction of discrimination under Article 21 of the Dispatch Act differs. Therefore, the user company cannot be deemed liable for the discrimination against temporary agency workers under Article 34(1) of the Dispatch Act.

② The purpose of the Act on Dispatching Workers is to strengthen the protection of temporary agency workers and prevent the proliferation of temporary agency workers indiscreetly by strengthening the protection of temporary agency workers and limiting the use of temporary agency workers to reduce personnel expenses by using temporary agency workers for saving personnel expenses. Therefore, it is appropriate to interpret that unreasonable discrimination against temporary agency workers should not be caused by engaging in the determination of the wages of temporary agency workers or exercising influence on them.

③ Wages paid to temporary agency workers are bound to be directly affected by the terms and conditions of a contract for temporary agency workers entered into with the temporary work agency. In this respect, Article 21(1) of the Dispatch Act provides that the employer shall also be subject to the prohibition of discrimination against temporary agency workers and the duty of correction if specified to promote the effectiveness of the system for prohibition of discrimination and correction for the protection of temporary agency workers. However, the absence of reasonable grounds refers to cases where the necessity for different treatment is not recognized, or where the need for different treatment is recognized, such as the method, degree, etc., even if it is not appropriate. Whether reasonable grounds exist shall be determined by comprehensively taking into account the content and degree of unfavorable treatment in individual cases, the contents, scope, and responsibility of the duties of the temporary agency workers on the basis of the reasons for disadvantageous treatment, etc.

C) Such a legal doctrine also applies to temporary agency workers in violation of the Dispatch Act. (2) The lower court determined as follows on the grounds such as the date of its sales. (1) Article 21(1) of the Dispatch Act provides both temporary agency and user companies with the duty to prevent discrimination in wages, or to rectify or resolve any occurrence of discrimination against them.

B) ① The Defendant, a user company, is obligated to have the Plaintiffs employed as temporary agency workers receive non-discriminatory wages from the Defendant’s on-site safety patrol officer employed as temporary agency workers. The Plaintiff received less wages than the Defendant’s on-site safety patrol officer, and there is no reasonable ground for discriminatory treatment. ③ The Defendant’s primary design for the Plaintiffs’ wages was made, and the Defendant paid wages to the Defendant based on the Defendant’s unit wage design, and then reported the details of the payment for each item of wages to the Defendant. The Defendant paid the service payment to the external employer of this case on the basis of the Defendant’s on-site safety patrol officer, and the Defendant controlled the payment level of wages to the Plaintiffs. Ultimately, the Defendant is obligated to compensate the Plaintiffs for the difference calculated by subtracting the actual amount of wages paid from the amount equivalent to the wages that it had received without discrimination.

3) Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable in its conclusion, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation by violating logical and empirical rules, or by exceeding the bounds of the principle of free evaluation by misapprehending the legal principles on the prohibition of discrimination by the user company under the Dispatch Act and the existence

5. As to the ground of appeal No. 9, if a dispatched employee directly employed the user from the date of occurrence of the direct employment obligation to the date of occurrence of the direct employment obligation to the date of establishment of the direct employment relationship, he/she may request the user company to pay a prize equivalent to the amount of damages equivalent to the wages (see Supreme Court Decision 2013Da14965, Nov. 26, 2015).

For the reasons indicated in its holding, the lower court determined that the Defendant has a duty to compensate the Plaintiffs for damages equivalent to the difference calculated by subtracting the wages received by the Plaintiffs from the external employer of the instant case during the same period from the wages of the safety patrol officer or the employees of the practical worker who were sought by the Plaintiffs from the date of occurrence of the direct employment obligation to the Plaintiffs.

Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err in its determination by misapprehending the legal doctrine on the duty to compensate for damages of the user company after the occurrence of the direct employment obligation, as alleged in the grounds of appeal, thereby omitting judgment without exhaust all necessary deliberations, or by exceeding the bounds of due diligence due to violation of logical and empirical rules.

6. As to the ground of appeal No. 10

A. Even if the temporary agency worker suspended the provision of labor, such as resignation from the temporary work agency, after the temporary agency worker was subject to the duty of direct employment from the user company, barring special circumstances, the temporary agency worker may claim compensation for damages equivalent to the wages he/she received if the temporary agency worker was directly employed from the user company to the time when the direct employment relationship comes into existence with respect to the non-performance of the direct employment obligation by the user company. However, in exceptional cases where it is deemed that the temporary agency worker would not have provided labor even if the user company performed the direct employment obligation, it cannot be deemed that the temporary agency worker suffered damages due to the non-performance of the user company's obligation. In such case, the court below's judgment cannot claim damages against the temporary agency worker. The defendant could receive wages if the temporary agency worker resigned from the user company on the date when the direct employment obligation occurred, but the defendant could not have claimed for direct employment obligation due to the non-performance of the user company's obligation.

Examining the reasoning of the original judgment in light of the legal principles and records before the judgment of the court below, some of the reasoning of the judgment below is insufficient, but such conclusion of the court below is justifiable. In so doing, contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the scope of the right to claim damages due to a non-performance of obligation to directly employ. The allegation in the grounds of appeal that inconsistency with the reasoning of the original judgment is inconsistent

(b) Scope of compensation for damages against the plaintiff 90,236 dismissed from an outsourcing business entity;

Since the above plaintiffs lost their qualification requirements as a safety patrolr after the defendant's direct employment duty occurred, the argument that they are not liable for damages to them is asserted only in the final appeal, and thus, they cannot be a legitimate ground for appeal as to the judgment below. The claim for the difference in overtime work allowances and holiday work allowances is not a legitimate ground for appeal.

The court below held that the defendant's field safety patrol officer worked as "8 hours per day, 40 hours per week, 40 hours per week," according to the defendant's wage or service organization, etc.

From June 2007 to June 30, 201, Plaintiff worked as “12 hours per day and 44 hours work hours per week”. The Plaintiffs recognized that they provided 48 hours per week work and received overtime work allowances for four hours exceeding 44 hours per week (average 17.3 hours per week) during this period, and then treated work hours which serve as the basis for calculating overtime work allowances without reasonable grounds. In comparison with Defendant’s on-site safety patrol members, the Plaintiffs suffered damages for which they did not receive overtime work allowances for 17 hours per week, or for which they did not receive overtime work allowances for 44 hours per week. In addition, the lower court determined that, in light of the aforementioned legal principles as stated in its reasoning, the non-permanent employer and the non-permanent employer did not have any reasonable grounds for appeal, and did not err by misapprehending the legal principles as to overtime work allowances for 17 hours per week, or by misapprehending the legal principles as stated in its reasoning, the lower court determined that the non-permanent employer did not have any reasonable grounds for appeal.

D. Claim of mutual aid

The plaintiffs' assertion that some of them should deduct the amount of money received in accordance with the result of the judgment of the wage lawsuit filed against the foreign company of this case and the separate agreement from the damages of the plaintiffs, is not a legitimate ground for appeal against the judgment of the court below, since they asserted only in the final appeal.

7. Conclusion

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.

Justices Kim Jae-hyung

Justices Min You-sook

Justices Lee In-bok and Lee Dong-won

Justices Noh Tae-ok