[1] The standard for determining whether the Plaintiff employee is “temporary placement of workers” subject to the Act on the Protection, etc. of Temporary Agency Workers in case where the Plaintiff employee allows the employee to perform duties for a third party

[2] In a case where Gap et al., employed by a non-designated business entity who entered into a service contract with the Korea Expressway to perform duties as a safety patrolr for an expressway, etc., sought confirmation of workers status against the Korea Expressway Corporation, the case affirming the judgment below which held that Gap et al., while maintaining employment relationship with the non-designated business entity and engaged in labor for the Korea Expressway Corporation in accordance with the direction and order of the Korea Expressway Corporation at its business establishment,

[3] In a case where a user company fails to perform the duty of direct employment under Article 6-2 (1) 1 or 5 of the Act on the Protection, etc. of Temporary Agency Workers, whether a user company has a judicial right to seek a judgment against the user company in lieu of the user company's expression of intent of employment (affirmative), and whether a direct employment relationship between the user company and the temporary agency worker is established upon the final judgment

[4] Where a temporary agency worker retires or is dismissed in relation to a temporary work agency after a user company's direct employment duty has occurred, whether it affects the legal relationship related to the duty of direct employment between the user company and the temporary agency worker (negative in principle), and whether the temporary agency worker can be determined as "where the relevant temporary agency worker explicitly expresses his/her objection" under Article 6-2 (2) of the Act on the Protection, etc. of Temporary Agency Workers just because the temporary agency worker expressed his/her intent to terminate the employment relationship with the temporary work agency (negative)

[5] In a case where the user company knew or could have known that the temporary agency worker was performing the same or similar work as the comparable worker, but the temporary agency worker was paid wages less than the comparable worker by participating in or exercising influence over the decision on the wages of the temporary agency worker, and there is no reasonable ground for such discrimination, whether the user company is liable to compensate for the wages discrimination (affirmative)

[6] Whether a temporary agency worker can claim damages equivalent to wages if the temporary agency worker was directly employed by the user company from the date of occurrence of the direct employment obligation to the date of establishment of the direct employment relationship (affirmative)

[7] Where the temporary agency worker suspended the provision of labor due to resignation of the temporary agency worker after the user company took the duty of direct employment, but it can be evaluated that the temporary agency worker failed to provide labor even if the user company fulfilled the duty of direct employment, whether the temporary agency worker can claim compensation for damages against the user company's failure to perform the duty of direct employment (negative)

[1] Under Article 2 subparagraph 1 of the Act on the Protection, etc. of Dispatched Workers (hereinafter “Dispatch Act”), temporary placement of workers means that a temporary work agency employs workers and has them engage in work for a user company under the direction and order of the user company in accordance with the terms and conditions of the temporary placement contract while maintaining the employment relationship. In a case where a user company allows a certain employee to perform the work for a third party, whether the legal relation is a temporary placement of workers subject to the Dispatch Act does not go to the name or form of the contract attached by the party, but rather, whether a third party is actually incorporated into a third party’s business, such as directly or indirectly giving binding instructions on the performance of the work, whether the pertinent worker is deemed to have been directly or indirectly incorporated into a single work group consisting of the third party employees, or whether the pertinent employee is entitled to select workers who will be placed in the work, or whether the purpose of the contract is to independently and specifically determine whether the purpose of the contract is to independently and specifically determine whether the work is an independent and technical element of the contract, and whether the work is independent and objective.

[2] In a case where Gap et al., employed by a non-designated business entity that entered into a service contract for safety patrols with the Korea Expressway and sought confirmation of workers status against the Korea Expressway Corporation, the case affirming the judgment below that it is reasonable to view that Gap et al. was inevitably subject to command and order of the Korea Expressway Corporation in order to efficiently conduct safety patrols conducted by Gap et al., and that it was reasonable that Gap et al. actually determined or instructed Gap et al.'s work volume, work method, work order, work speed, work place, work hours, etc.; ② workers employed by a non-designated business entity were a single work group as a whole and essential part of the Korea Expressway Corporation's work site safety patrols or situations; ③ it is difficult to view that the non-designated business entity was actually incorporated into the Korea Expressway Corporation's work in its process; ③ it is difficult for Gap et al. to independently conduct the education or training independently; ④ it was not sufficient for Gap et al. to perform the work's own purpose after concluding the service contract with Gap et al.

[3] Article 6-2(1) of the Act on the Protection, etc. of Temporary Agency Workers provides that "where a user company uses temporary agency workers in relation to duties not subject to temporary agency workers (Article 6-2(1)1) and "where a user company is provided with services for temporary agency workers as a test by a user company without the permission of the Minister of Employment and Labor (Article 5)" (Article 6-2(1) provides that the relevant temporary agency worker should be directly employed. Considering the purport and contents of such provision, a user company that falls under the above provision has a contractual right to seek a judgment on the user company in lieu of the user company's expression of intent to hire if the user company fails to perform the duty of direct employment, and the judgment becomes final and conclusive, a direct employment relationship

[4] In light of the content and process of amendment of the provision on direct employment obligation under the Act on the Protection, etc. of Dispatched Workers (hereinafter “Dispatch Act”), legislative purpose, etc., even if a temporary agency worker was retired or dismissed in relation to a temporary work agency after a user company’s direct employment obligation occurred, such circumstance does not affect, in principle, the legal relationship related to the direct employment obligation between the user company and the temporary agency worker. In addition, even if the temporary agency worker expressed his/her intent to resign with the intent to terminate a labor relationship with the temporary work agency, such circumstance alone cannot be readily concluded that the temporary agency worker constitutes “where the relevant temporary agency worker expressed his/her explicit objection.”

[5] Article 21(1) of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Temporary Agency Act”) provides that “A temporary work agency and a user company shall not discriminate against a temporary agency worker on the ground that the temporary agency worker is a temporary agency worker against his/her worker performing the same kind of duties or similar duties within the user company’s business, and Article 21(2) of the same Act provides that the temporary agency worker may file a request for correction of discriminatory treatment with the Labor Relations Commission. Considering the content and legislative intent of the provision on the prohibition of discrimination under the Dispatch Act, if the user company knew that the temporary agency worker and the comparable worker were to perform the same or similar duties or was given reasonable attention from the ordinary user company, even though he/she could have known of the fact that the user company knew of the fact that the temporary agency worker and the comparable worker were to perform the same or similar duties, and without any reasonable reason, it constitutes an unlawful act in violation of Article 21(1) of the Dispatch Act and constitutes a tort under Article 750 of the Civil Act.

In the absence of reasonable grounds, “the temporary agency worker” means a case where the need to treat the temporary agency worker differently is not recognized or the need to treat the worker differently is recognized, and the method, degree, etc. is not appropriate even if there is a reasonable ground. Furthermore, whether there is a reasonable ground should be determined by comprehensively taking into account the content and degree of unfavorable treatment in individual cases, the reason why unfavorable treatment has occurred, etc.

This legal principle also applies to the temporary agency employment relationship in violation of the Dispatch Act.

[6] If a temporary agency worker has been directly employed by the user company from the date of occurrence of the direct employment obligation to the date of establishment of the direct employment relationship with the user company, the temporary agency worker may claim damages equivalent to the wages.

[7] Even if the temporary agency worker suspended the provision of labor due to resignation after the temporary agency worker took the duty of direct employment, barring special circumstances, the temporary agency worker may claim compensation for damages equivalent to wages, if the temporary agency worker was directly employed from the date of the direct employment obligation to the user company until the direct employment relationship is established. However, in exceptional cases where the user company can be deemed to have not provided labor even if the user company fulfilled the duty of direct employment, it cannot be deemed that the temporary agency worker suffered damages due to the user company's nonperformance of the duty of direct employment. In such cases, the temporary agency worker cannot claim compensation for damages.

[1] Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers / [2] Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers / [3] Article 6-2 (1) 1 and 5 of the Act on the Protection, etc. of Temporary Agency Workers, Article 248 of the Civil Procedure Act / [4] Article 6-2 (1) and (2) of the Act on the Protection, etc. of Temporary Agency Workers / [5] Article 2 subparagraph 7 of the Act on the Protection, etc. of Temporary Agency Workers, Articles 21 (1) and (2), and 34 (1) of the Act on the Protection, etc. of Temporary Agency Workers, Articles 393, 750, and 763 of the Civil Act / [6] Article 6-2 (1) of the Act on the Protection, etc. of Temporary Agency Workers, Article 390 of the

[1] [1] [4] Supreme Court Decision 2017Da219072, 219089, 219096, 219102, 21919, 21919, 219126, 21913 (Gong2019Ha, 1786) / [1/3/6] Supreme Court Decision 2013Da14965 Decided November 26, 2015 (Gong2016Sang, 4) / [1] Supreme Court Decision 2010Da106436 decided February 26, 2015 (Gong2015Sang, 515)

Attached List of Plaintiffs (Law Firm aiming at, et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Choi Ho-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Na2036786, 2036793, 2036809, 2036809, 2036816, 20368939 decided June 24, 2016

All appeals are dismissed. The costs of appeal are assessed against the defendant.

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

1. As to the grounds of appeal Nos. 1 through 5

A. According to Article 2 subparag. 1 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Temporary Agency Act”), temporary placement of workers means that a temporary work agency employs workers and has them engage in work for a user company under the direction and order of the user company in accordance with the terms of the temporary agency contract while maintaining the employment relationship. In a case where a user company allows a certain employee to perform the work for a third party, whether the legal relationship is a temporary placement of workers subject to the Dispatch Act is not attributable to the name or form of the contract attached by the party, but rather, whether a third party directly or indirectly instructs the relevant worker to perform the work itself, such as giving binding instructions on the work itself, whether the relevant worker may be deemed as having been actually incorporated into a third party’s business, such as selection of workers who will be placed in the work for the Plaintiff company, number of workers, training, working hours, leave, inspection of attitude, etc., whether the purpose of the contract is to independently and specifically determine whether the contract is based on the substance and purpose of the contract’s independent and technical structure.

B. The court below acknowledged the facts in full view of the adopted evidence, and determined that the plaintiffs and the defendant were dispatched workers, on the following grounds, since they employed each of the foreign injection enterprises in the judgment (hereinafter referred to as "foreign injection business entity in this case" and the person operating the foreign injection business in this case is referred to as "foreign injection business entity in this case") while maintaining the employment relationship and engaged in work for the defendant in accordance with the defendant's direction and order at the defendant's workplace.

1) A) In light of the fact that the Defendant’s duties of patrol on an expressway, which he had been directly controlled for a long time, artificially outsourced the duties of patrol on an expressway, and the duties of maintaining, managing, and patroling the national expressway connected with one network, are inevitably accompanied by urgency and swiftness, etc., in order for the Plaintiffs to efficiently perform their duties, an organic report, instruction, and cooperation between the Plaintiffs and the employees belonging to the Defendant was important, and therefore, the Defendant’s direction and order was inevitable. In fact, the foreign owner of the instant case, through the instant service contract, granted the Defendant a considerable discretionary power and right to control the affairs.

B) The Defendant provided education to support the establishment of a foreign-capital invested company by its employees, and the content of the education is almost the same as the content of the instant service agreement. The Defendant provided the foreign-capital invested company with the form of employment rules, employment contracts, and employment-related documents so that safety patrol officers employed by the foreign-capital invested company can be managed on a uniform and uniform basis. In addition, the employment contract concluded between the foreign-capital invested company and the safety patrol officer, which entered into with the foreign-capital invested company, determined that the safety patrol officer must comply with the Defendant’s service policy, and that the foreign-capital invested company should be withdrawn

C) ① The instant service contract includes the Defendant’s granting “the authority to instruct the instant out-of-the-spot owners to perform various duties,” and accordingly, the Defendant specifically supplemented the Plaintiffs’ work methods through occasional, regular, and various educational data distribution. 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, and ordered them to conduct the inspection. ③ In accordance with the instant service contract, if the employees in the situation room employed by the Defendant directly instructed the Plaintiffs to perform their duties, the Plaintiffs reported the results of the management to the workers in the situation room. ④ From January 2013, 2013, the Defendant prepared a plan for strengthening the on-site management in order to prevent safety patrol accidents. ⑤ The Plaintiffs received approval from the employees belonging to the Defendant, such as the day patrol, and submitted the Plaintiffs’ work order or output of the device to the Defendant in light of the order of work hours.

D) The order of the instant outsourcing business owner to provide specific services to the Plaintiffs was generally limited to the level of delivering the Defendant’s business instruction. Therefore, it can be deemed that the direction and order of the Plaintiffs, which the outsourcing business owner had issued, was under the control of the Defendant.

2) In light of the fact that the plaintiffs accepted the previous duties of the safety patrol staff belonging to the defendant, carried out the duties of the safety patrol staff while maintaining an organic reporting or cooperation system with the employees belonging to the defendant's situation room, the plaintiffs jointly carried out such duties as traffic safety campaigns and joint control of restricted vehicles and received relevant education with the employees belonging to the defendant, and the plaintiffs and the employees belonging to the defendant were also engaged in the duties of the neighboring branch if large accidents occur and support of duties was provided between neighboring branches, the plaintiffs and the employees were engaged in the duties of the defendant, and the plaintiffs used the safety vehicle patrol stating the name and name of the defendant's office, and operated the safety vehicle patrol stating the defendant's log, etc., and was selected as excellent patrol staff at the defendant's headquarters or branch office, it is reasonable to view that the employees belonging to the foreign branch of the defendant as well as the employees of the safety patrol staff belonging to the defendant's office and the employees of the situation room as a single work group as a whole

3) The Defendant was able to exert considerable influence on the selection of workers to be invested in the implementation of the instant service contract, the number of workers, replacement of workers, work or rest time, wage level, etc., and it appears that the situation of the Plaintiffs through the outing business owner of the instant case was to have been identified to a certain extent. Therefore, it is difficult to view that the outing business owner of the instant case independently decided matters concerning the inspection of the work attitude and leave, etc. of the employees under his control. In particular, the Defendant was considerably involved in the education and training of the Plaintiffs, and the case where the outing business owner of the

4) The instant service contract stipulates that the Defendant is able to exercise considerable discretion and duty control, and that the Plaintiffs’ work may be specifically determined according to the Defendant’s instruction. The Defendant specifically identified the Plaintiffs’ work through various guidelines. Accordingly, the Plaintiffs also performed an irregular work, such as traffic safety campaigns, joint control of restricted vehicles, control and publicity of safety belts, livelihood supply services for those who have difficulty in using rest areas, and survey of major transport items of large-sized freight. In light of these circumstances, it is difficult to view that the purpose or object of the instant service contract is determined as the performance of limited work.

5) Most of the outsourcing business owners were originally employed by the Defendant, and they were not fully equipped with the organization and facilities necessary to achieve the purpose of the contract at the time of the conclusion of the instant service contract. In most cases, the outsourcing business entity was merely employed by the Defendant in accordance with the Defendant’s policy, and was directly supplied by the Defendant with the main equipment necessary for the implementation of the instant service contract, such as office space, office fixtures, and safety patrol car.

B) It seems that the outsourcing business owner of the instant case had no unique technology necessary for the implementation of the instant service agreement or did not have invested a special capital.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the criteria for determining temporary placement of workers, contrary to what is alleged in the grounds of appeal, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The Supreme Court precedents cited in the grounds of appeal

2. Regarding ground of appeal No. 6

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 a user company uses a temporary agency worker in relation to a job that does not constitute a temporary agency worker” (Article 1) and “where a user company is provided with temporary agency services without the permission of the Minister of Employment and Labor (Article 5)” (Article 6-2(1) of the Dispatch Act that “if a user company is provided with temporary agency services without the permission of the Minister of Employment and Labor, the user company is obligated to directly employ the temporary agency worker, and the user company has a judicial right to seek a judgment claiming against the user company in lieu of the expression of intent of employment if the user company fails to perform the direct employment obligation, and the judgment becomes final and conclusive, a direct employment relationship exists between the user company and the temporary agency worker (see, e.g., Supreme Court Decisions 2013Da14965, Aug. 27, 2097, 2019).

The lower court did not err by misapprehending the legal doctrine regarding 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 ground of appeal No. 7

A. In light of the content, amendment, legislative purpose, etc. of the provisions on the direct employment obligation under the Dispatch Act, even if a temporary agency worker was retired or dismissed from the relationship with a temporary work agency after a user company had the duty of direct employment, 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. In addition, even if the temporary agency worker expressed his/her intent to resign with the intent of termination of the employment relationship with the temporary work agency, such circumstance alone cannot be readily concluded that the temporary agency worker constitutes “where the relevant temporary agency worker explicitly expresses his/her objection” as the ground for exclusion from the application of the provision on direct employment obligation under Article 6-2(2) of the Dispatch Act (see Supreme Court Decision 2017Da219072, Aug. 29, 201

B. 1) The assertion that Plaintiffs 90 and 236 lost their qualification as a safety patrolr after the Defendant’s direct employment obligation occurred, is asserted only in the final appeal, and thus, cannot be a legitimate ground for appeal.

2) Furthermore, based on its stated reasoning, the lower court rejected the Defendant’s assertion that the provision on direct employment does not apply to the Plaintiffs, who were resigned or who were subject to disciplinary action from the foreign business entity of this case after the obligation to directly employ had occurred.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the direct employment obligation under the Dispatch Act, contrary to what is alleged in

4. As to ground of appeal No. 8

(a) Whether there are comparable workers;

The lower court determined that, since the Plaintiffs continued to perform the same or similar tasks as the Defendant’s on-site safety patrolman from the commencement of dispatch work until the date of the Defendant’s direct employment obligation, the comparative workers to determine whether there was discriminatory treatment against the Plaintiffs during the period prior to the occurrence of the direct employment obligation, were the Defendant’s on-site safety patrolman.

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the scope of comparable workers under the Dispatch Act

B. Whether the Defendant is liable for damages against the Plaintiffs’ wage discrimination

1) Article 21(1) of the Dispatch Act provides that “A temporary work agency and a user company shall not discriminate against a temporary agency worker for the reason that the temporary agency worker is a temporary agency worker against workers performing the same kind of work or similar work within the user company’s business.” Article 21(2) of the Dispatch Act provides that the temporary agency worker may file a request for correction of discriminatory treatment with the Labor Relations Commission. Considering the language and text, legislative purport, etc. of the provision on prohibition of discrimination under the Dispatch Act, if the user company knew that the comparable worker and the comparable worker were to perform the same or similar work or was paid reasonable attention from the ordinary user company’s position, it can be known that the temporary agency worker would have been paid wages less than the comparable worker even though he/she was aware of it in determining the wages of the temporary agency worker, or exercising influence on the temporary agency worker without any reasonable ground, it constitutes an unlawful act in violation of Article 21(1) of the Dispatch Act and constitutes a tort under Article 750 of the Civil Act. In such case, the user company is obligated to compensate for actual difference between wages and actual damages.

(1) Article 21(1) of the Dispatch Act provides that user companies and temporary work agencies shall be subject to the duty of prohibition of discrimination, and does not specify the duty of prohibition of discrimination between user companies and temporary work agencies for each area where discrimination exists. Therefore, if a temporary agency worker is discriminated against in wages, not only the temporary work agency but also the user company may be held liable for such discrimination in certain cases.

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

② The purpose of the Act on Dispatching Workers is to “the purpose of introducing a discrimination system against temporary agency workers is to strengthen the protection of temporary agency workers and prevent the proliferation of reckless temporary agency workers by strengthening the use of temporary agency workers to save personnel expenses through the improvement of discrimination raised against temporary agency workers as a consequence of the utilization of temporary agency workers to reduce personnel expenses.” Therefore, it conforms to such legislative purpose to interpret that the user company should not cause unreasonable discrimination against temporary agency workers by engaging in determining the wages of temporary agency workers or exercising influence on them.

③ Wages paid to temporary agency workers shall be directly affected by the terms and conditions of the temporary agency contract concluded with the temporary work agency by the user company. In this respect, it is understood that Article 21(1) of the Dispatch Act grants the user company a duty to prohibit and rectify discrimination against temporary agency workers in certain cases in order to promote the effectiveness of the system for preventing discrimination and rectifying discrimination against temporary agency workers.

B) In the absence of reasonable grounds, “where there is no need to treat the temporary agency worker differently or the need to treat the temporary agency worker differently is recognized, the method and degree of the temporary agency worker’s treatment are not appropriate. Whether reasonable grounds exist should be determined by comprehensively taking into account the content and degree of unfavorable treatment in individual cases, the contents, scope, authority, responsibility, etc. of the temporary agency worker based on the reasons for disadvantageous treatment in question.

C) Such a legal doctrine also applies to the temporary agency employment relationship in violation of the Dispatch Act.

2) The lower court determined as follows on the grounds indicated in its reasoning.

A) Article 21(1) of the Dispatch Act provides both temporary work agencies and user companies with the duty to prevent discrimination in wages, or to rectify or resolve the discrimination that has occurred.

B) ① The Defendant, the user company, bears the duty to have the Plaintiffs receive non-discriminationd wages with the newly employed on the part of the Defendant employed on the part of the dispatched worker, who is the comparative worker. ② The Plaintiffs received less wages than the Defendant’s on-site safety patrolman, and there is no reasonable ground for discriminatory treatment. ③ The Defendant primarily designed the Plaintiffs’ wages. ③ The outsourcing employer of the instant case, based on the Defendant’s unit wage design, paid the Defendant’s wage to the safety patrolman, and reported the details of the payment for each wage item to the Defendant. Based on the result, the Defendant conducted the quality test, and controlled the payment level of the Plaintiffs’ wages, etc., it is also acknowledged that the Defendant’s fault was attributable to such discrimination. ④ In the end, the Defendant is obligated to compensate for damages equivalent to the difference calculated by subtracting the actual paid wages from the amount equivalent to the wages that the Plaintiffs would have received without discrimination.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the said determination by the lower court 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 of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the prohibition

5. As to ground of appeal No. 9

A temporary agency worker may claim compensation for damages equivalent to the wages that the user company has received if the temporary agency worker is directly employed from the date of occurrence of the direct employment relationship to the date of establishment of the direct employment relationship (see Supreme Court Decision 2013Da14965 decided Nov. 26, 2015).

For the reasons indicated in its reasoning, the lower court determined that the Defendant was liable to compensate the Plaintiffs for damages equivalent to the difference calculated by subtracting the wages received from the external employer of this case during the same period from the wages of the safety patrol officer or the employees in the workplace belonging to the Defendant from the date of occurrence of the direct employment obligation to the Plaintiffs from the date of occurrence of the direct employment obligation.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the duty of a user company to compensate for damages after occurrence of a direct employment obligation, thereby failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence in violation

6. As to ground of appeal No. 10

A. Scope of compensation for damages against the plaintiffs who retired from a foreign business entity

1) Even if the temporary agency worker suspended the provision of labor due to resignation from the temporary work agency after the user company took the duty of direct employment, barring any special circumstance, the temporary agency worker may claim damages equivalent to wages if the user company was directly employed by the user company from the date of occurrence of the direct employment obligation to the date of establishment of the direct employment relationship. However, in exceptional cases where it is deemed that the temporary agency worker would not provide labor even if the user company fulfilled the duty of direct employment, it cannot be deemed that the user company suffered damages due to the user company’s nonperformance of the duty of direct employment. In such cases, the temporary agency worker cannot claim damages.

2) The lower court determined that the Defendant was able to receive benefits from the Defendant, even though the Defendant had employed them on the date of occurrence of the obligation of direct employment, and that the Defendant incurred losses due to the failure to perform the obligation of direct employment, and accepted the claim of the said Plaintiffs.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the reasoning of the lower judgment is partially insufficient, but such conclusion of the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the scope of claims for damages arising from nonperformance of obligation to directly employ employees, etc. In so determining, contrary to what is alleged in the grounds of appeal.

(b) Scope of compensation for damages against Plaintiffs 90 and 236 dismissed from an external injection enterprise;

The allegation that the above plaintiffs lost their qualification requirements as a safety patrolr after the defendant's direct employment obligation occurred, and that the defendant is not liable for damages to them is asserted only in the final appeal, and thus, it cannot be a legitimate ground for appeal against the judgment below.

(c) Claim for the difference in overtime work allowances and holiday work allowances;

The lower court: (a) recognized that the Defendant’s on-site safety patrolman worked as “1 hours per day, 8 hours per week, 40 hours per week”; (b) the Plaintiffs worked as “12 hours per day, 44 hours per week”; and (c) based on the Defendant’s design of wage or organization of work, etc., from June 2007 to June 30, 201, as “12 hours per day, and 44 hours per week”; and (d) recognized that the Plaintiffs provided 48 hours per week work during this period and received overtime allowance only for 44 hours per week (average 17.3 hours per week); and (c) accordingly, determined that the Defendant and the on-site employer of the instant case differently treated working hours as the basis for calculation of overtime allowance without any justifiable reason, the Plaintiffs suffered overtime allowance corresponding to the number of hours per month 17.3 hours in comparison with the Defendant’s on-site safety patrolman.

In addition, the court below acknowledged that the outsourcing company of this case granted the plaintiffs paid holidays less than paid holidays stipulated in the established rules applicable to the defendant's on-site safety patrol officers, and judged that the plaintiffs suffered damages equivalent to the difference in the paid holidays and the holiday allowances paid to the outsourcing company of this case, which would have been paid if they were given the same agreed holidays as the defendant's on-site safety patrol officers, and rejected the defendant's assertion that the outsourcing company of this case did not bear liability for damages due to the non-compliance with the paid holidays of the defendant's design.

Examining the reasoning of the lower judgment in light of the relevant legal principles and regulations, and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the reasonable grounds of discrimination and the scope of liability for damages by the user company, contrary to what is alleged in the grounds of appeal, by omitting necessary deliberations or by exceeding the bounds of the principle

D. Claim of mutual aid

The assertion that part of the plaintiffs should deduct the amount received from the amount of damages of the plaintiffs in accordance with the result of the judgment of the wage lawsuit filed against the external business owner of this case and the separate agreement shall not be a legitimate ground for appeal as to the judgment of the court below.

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 on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Kim Jae-hyung (Presiding Justice)