(영문) 대법원 2016.6.23.선고 2012다108139 판결

1. Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Dispatch Act”) means that a temporary work agency employs a worker and has him/her engage in work for a user company under the direction and order of the user company in accordance with the terms of the worker dispatch agreement while maintaining the employment relationship after the temporary work agency employs the worker.

Meanwhile, Article 6(3) of the former Dispatch Act (amended by Act No. 8076 of Dec. 21, 2006) provides that “If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the second-year period expires (hereinafter “direct employment deeming provision”). This means that a direct employment relationship exists between the user company and the temporary agency worker immediately where the temporary agency worker is dispatched and the temporary agency worker continues to exceed two years (see, e.g., Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008).

In addition, it is reasonable to view that the working conditions of a dispatched worker deemed directly employed by the user company under the direct employment deeming that the working conditions of the dispatched worker are the same as those prescribed by the rules of employment, etc. applicable to the worker, if there is a worker performing the same or similar kind of duties as those of the relevant dispatched worker among the workers employed by the user company (see Supreme Court Decision 2012Da17806, Jan. 28, 20

Furthermore, after the legal effect of the provision on deeming direct employment has already occurred, a direct employment relationship is established between the temporary agency worker and the user company, and the temporary agency worker acquired the right that the temporary agency worker would be entitled to the same working conditions as the worker employed by the user company, then setting the first working conditions under the direct employment in comparison with the above working conditions by a third party such as a trade union and the user company in deciding whether to directly employ the temporary agency worker is in accord with the purport of the provision deeming direct employment as well as retroactively changing the rights of the temporary agency worker without the individual consent or authorization of the temporary agency worker. Thus, such agreement should be deemed null and void

2. Based on its reasoning, the lower court determined that: (a) in the case of the Plaintiffs as temporary agency workers, the provision on deeming direct employment is applied; (b) thereafter, salary class 1 should be granted to the Defendant’s employees at the time when the Defendant, the user company, is deemed to employ the Plaintiffs; and (c) however, inasmuch as the labor union and the Defendant agreed to grant a full-time salary class 1 only from the time of new employment when determining the Plaintiffs’ new employment and their initial working conditions pursuant thereto, it violates the legislative purpose of the former Dispatch Act and the provision on deeming direct employment; and (c) the filing of the instant lawsuit cannot be deemed as contrary to the principle of good faith or the principle of no speech, solely on the grounds that the Plaintiffs filed the instant lawsuit more than seven years after the date of withdrawal of the aforementioned agreement and the said provision.

3. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the interpretation of the provision regarding deeming direct employment, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

The Supreme Court's decision cited in the grounds of appeal differs from this case, and it is not appropriate to invoke this case.

4. 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 on the bench.